Skip to main content

Full text of "The Indian constitution"

See other formats




m:m^'^''m' 



CO 



?OJ 



:ir> 



ILO 



•CD 



CO 




THE 



NDIAN CONSTITUTION 



I 



1 



V. R. SUBRAHMANYA AIYAR M. A , M. L. 

Senior Professor of haw, Rolkar College, Indore. 

Member of the Facullij of Lau? and the Academic Poard, 
Convener, Board of Studies in Lau?, Agra Uniuersitij. 

( Formerl-q High Court Uakil, Honi^. First Class Magistrate, 
and Honij. Co-opera tius Organiser, Trauancore ). 

Author of 

" LEGISLATION IN INDORE " 

" CThe Neu? Constitution of India " &.c. 

WUh a Foreword by 

VVazir=U(I-DauIah Rai Bahadur 
5ir S. M. BAPNA Kt., C- I. E. 

B. A,, B, SC, LL. B. 

Prime Minister and President, Legislaliue Council, Indore. 



Rs, 4. 



JO 


331 


f\(pa 


\blisher: — 


[ V. R. S. AIYAR. 


14, South Tukoganj, 


INDORE. 



Printed by 
D. R. EKTARE, B, A, 

io.opERATivE Printing Press, 

INDORE CITY. 



Copies can be had of: — j 

(1) THE PUBLISHER. | 

(2) THE UNION STORES Ij 

Bookselleri, | 

INDORE CITY. 

I' 

(3) SINVHAL BROTHER 

Booksellers. 

INDORE CITY. 



Rights including right of iranslatioii reserved. 



—■■•'•-' 1111 



i BY THE SAME AUTHOR 

THE NEW CONSTITUTION OF INDIA 

With a Foreword by 

Mashir Bahadur Dr. P. BASU M. A , Ph. D., B. L. 

Principal, Holkar College, Indore, 

and 

UicC'-ChanceUor, Agra Uniuersilij. 

" This study of the Act for the general reader has 
sen considerably simplified by the present brochure 
'rofessor Aiyar has carefully analysed the provisions o 
le Act bringing out its main features. His explanation: 
re lucid and his grasp of the subject thorough. It ii 
ot easy to show all this within two hundred and fift; 
ages. This is his credit as also the special merit o 
is book. I have no hesitation in recommending it tc 
\{ who want clearly to understand the fundamenta 
'■^^0Tr\S^^>t,he new constitution and I hope that this boo! 
7ill be widely read by the educated public of India." 

!VUV 6 'jQ7R {Extract from the Foreword ). 



FOREWORD. 

The common complaint of the layman is that 
constiluticns and the measures that embody them are 
set out in a language that remains highly technical. 
Consequently though every one is governed by the Law 
laying down the Constitution, a very small percentage 
of the people understand it. That is not a desirable 
state of affairs; but it exists. 

It is there lies the usefulness cf books like the one 
written by Mr. V. R. S. Aiyer. They help the average 
educated man to understand the law to which he is 
subject every day of his life and, perhaps imperceptibly 
enable him to model his life in full understanding of 
the piovisions of the law. Mr. Aiyer's additional object 
is to make the Government cf India Act (1935) 
intelligible to the student. Both by his intimate contact 
with the student world and his past experience Mr. 
Aiyer is fully qualified for catering to the needs of that 
class, anxious to understand ccmplicated legal enact- 
ments; and his book is a valuable contribution in that 
direction and presents a complete summary of the Act 
with sufficient legal accuracy. 

Mr. Aiyer has quite rightly not expressed any 
views regarding the merits of the constitution that is set 
out in the Government of India Act (1935). The Cons- 
titution has yet to ccme into foice and diverse opinions 



are held about its several details. How the Great Ex- 
periment is going to take shape v\iil depend on a large 
variety of considerations that are independent of the 
letter of the Constitution. Dealing with the prospects 
of success of the constilulion might have created con- 
fusion in the mind of tie student and hindered, rather 
than helped towards the realisation of the object of the 
author, viz., enabling the young mind to get a clear 
grasp of the implications of the various provisions of the 
Government of India Act. 

S. M. Bapna. 



PREFACE. 

This book is modelled to meet the requirf merits 
of the general public who desire to have an idea of 
the new Constitution of India, and of College 
students who have got to study the Government of 
India Act of 1935 as a part cf their course. In 
the earlier chapters an idea of a Federal Constitution 
and a survey cf the history of the Indian Constitution 
up to 1935 are given. A summaiy of the Act and 
of the Schedules thereto is then given. The last 
five chapters contain a reprint of important Sections of 
the Act; and notes are given for several of them. In the 
Appendices the trends of developmiCnt of the Adminis- 
trative machinery, civil and military, are dealt with. 

I have inserted in appropriate places some extracts 
from the series of my articles on the "States and Federa- 
tion" and en the "Public Services." I have also embo- 
died in this book practically all the chapters of my book, 
''The New Constitution of India,'' which was intended 
mainly for Law students. 

I am obliged to Mr. W. Y. Pande M. A., LL. B., 
of the Indore Bar, who drafted the summary of about 
forty sections of the Act, and to my brother, Mr. V. E, 
Sadasivan M. A., who prepared the Index and helped 
me considerably in seeing the book through the Press. 



I am deeply obliged to Wazir-ud-Daulah Rai 
Bahadur Sir S. M. Bapna Kt., C. I. E., B. A., B. Sc, 
LL. B., for writing the Foreword. 

I am thankful to the Goveinment of India for the 
permission granted to reprint important Sections of 
the Act. 

My thanks are also due to my brother co-opera- 
tors Prof. W. G. Urdhwareshe M. A., F. R. E. S. and 
Mr. D. R. Ektare B. A. in charge of the Indore Co- 
operative Printing Press for help rendered in con- 
nection with the publication. 

Indore, January, 1937. V. R. S. Aiyar. 



"That humble, simple duty of the day 

Perform he bids; ask not if small or great; 

Serve in thy post, be faithful and obey; 

Who serves her truly, sometimes saves the State' 



CONTENTS. 

Page. 
Foreword 

1 rGlflCB ^ ••• ••• ••• ••• 

Chapter I. — Introductory Explaiications ... ... 1 

Constitutions — Composite States — Unions — Con- 
federations—Federations — The American Con- 
stitution — Swiss Constitution — Australian Con- 
stitution. 

Chapter II. — Historical Survey... ... ... 7 

Period of Charters — Period of territorial Sove- 
reignty — Period of Sovereign Government by the 
Crown — The Act of 1892 — Minto-Morley Reforms 
— Montagu-Chelmsford Reforms. 

Chapter III — Constitutional Investigations from 1920 

to 1935 ... ... ... 16 

The Muddiman Committee — Enquiry and Report 
— Lord Reading's Letter to the Nizam — Simon 
Commission Enquiry — Butler Committee — Nehru 
Report — Butler Report — Simon Report — R.T.C. — 
Federal Idea — Communal Award — Sapru Memo- 
randum-White Paper-J. P. C. — AgaKhan Memo- 
randum— J. P. C. Report— The Bill. 

Chapter IV — The New Constitution ... ... 49 

Federation — Units— Accession of States — Exe- 
cutive — Council of Ministers — Reserved Subjects 
— G-G's Special Responsibilities — Instrument of 
Instructions — Federal Legislature — Legislative 
Procedure — Financial Matters — General Proce- 
dure — G-G's Legislative Powers — G-G's Acts — 
Safeguards against failure of Constitutional ma- 
chinery — Provincial Governments — Provinces- 



Governor's Administration — Special Provisions — 
Provincial Legislatures — Excluded Areas — Chief 
Commissioners' Provinces — Legislative and Admi- 
nistrative Jurisdiction — Lemslative .Powers — 
Jurisdiction — Legislative Lists — Emergency 
Legislation — Restriction of Legislative Powers — 
Discrimination — Medical Qualifications — Admini- 
strative Relations between Federation, Provinces 
and States — Administration — Broadcasting — 
Water sup[)lies — Crown and States — Financial 
Provisions — Borrowing — 'Audit and Accounts — 
Property, Contracts — Liabilities and suits. 

Chapter V — The New Constitution (Contd.) ... ... 86 

Federal Railway Authority. 

Functions — composition — direction and 
principles — P"inance — Railway Rates Commi- 
ttee—Railway Tribunal, 

Judicature. 

Federal Court— Constitution — Jurisdiction — 

State Courts. 
Courts in B. India — constitution and jurisdic- 
tion. 
Services of the Crown. 

Defence services— civil services — recruitment 

by Secretary of State— judicial officers — 

miscellaneous. 

Public Service Commissions— composition — 

functions. 
Secretary of State and his advisers— organi- 
sation. 
Miscellaneous and General, 

Crown and Indian States — Aden — New Pro- 
vinces — Franchisee — Legal matters — Existing 
Jaw — Foreign jurisdiction— General-High 
Commissioner — Constitutional amendments 



and Orders in Council. — Transitory provi- 
sions — Commencement and repeal. 

The Schedules. First Schedule— Federal Legis- 
lature — States' Representatives— schedules 
2 to 5 — Provincial Legislature — franchise — 
Federal Railway Authority &c. 

Chapter VI— The Government of India Act, 1935, ... 114 

Parts I and U. with notes. 

Chapter VII— The G. of L Act, 1935. ( contd )... ... 162 

Parts III, IV, V, VI, VII, with notes. 

Chapter VIII— The G. of I. Act, 1935. (contd)..- ... 207 

Parts VIII, IX, X, with notes. 

Chapter IX— The G. of I. Act, 1935. ( contd )... ... 239 

Parts XI, XII, XIII, XIV, ^vith notes. 

Chapter X— The G. of I. Act, 1 935. Schedules ... ... 261 

Federal I egislaturr — Table of Seats — Provincial 
Legislature — Frandtise — U. P. Legislature — 
Legislative Lists. 

Appendices ... ... ... ... i 

A. General Administration. 

B. Control from Encjland. 

C. The Judiciary. 

D. The Public Services. 

E. Defence. 

F. Extracts from Proclamations, speeches and 
writings on Indian Policy. 1 to 10. 

G. Draft Instrument of Accession. 

H. Select opinions on the White Paper, Simon 
Report and Dominion Status. 

Index ... ... ... ... ... XXV 

•Cirra ta... ... ... ... ... 



" It is axiomatic that the spirit in which a constitution 
is worked must in the long run count for more than the letter 
in which it is written. For myself I am able to assure you 
that, for such time as I am holding my present office, it is 
my intention to interpret my duty with liberal and sympa- 
thetic mind For my part I shall be found ready and 

anxious, when the time comes, to work to the best of my 
power with any and every political party willing to work 
the constitution that may succeed in winning the confidence 
of the electorates." — His Excellency The Marquis of 
LINLITHGOW. 



" The political evolution of India has reached a point 
where in their respective spheres the Governor-General and 
Governors of Provinces should more and more seek to 
observe those conventions which regulate the attitude to- 
wards matters of contemporary public controversy, of the 
('rown in Great Britain and of the representatives of the 
Crown in, for example, Canada and Australia, for, democra- 
tic institutions require for their successful working that all 
parties in the State which, whether in office or in opposition 
work within the Constitution, should be able to feel that at 
the head of the State there is some one above party and 
above the heat and the dust of party warfare to whom they 
can at all times and whatever their political fortunes for 
the time being look with confidence for all proper counte- 
nance and support." — His Excellency The Maiquisof 
LINLITHGOW. 



THE INDIAN CONSTITUTION 



Chapter I 

INTRODUCTORY EXPLANATIONS. 

The Constitution: — A State is defined by Maclver as "an 
association, which, acting through law as promulgated by 
government endowed to this end with coercive power, 
maintains within a community, territorially demarcated, the 
universal external conditions of social order". Constitutional 
law is the body of principles which determine the essential 
and fundamental portions of the State's organisation. 
" The Constitution of a Stute consists of those of its laws 
or rules which determine the form of its government and 
the respective rights and duties of it towards the citizens 
and of the citizens towards the government. " ( Bryce ) 

Composite States: — States are variously classified 
according to different painciples. Under one such princi- 
ple, States are either unitary or composite. Composite 
states involve the union under a government of a number 
of political entities retaining separate administrations. 
" In the form of empire, the components do not create the 
common government. In the form of federation, the com- 
ponents both retain a degree of sovereignty and together 
constitute the sovereign power, which upholds the federal 
union." ( Salmond ). It has to be noted that " so long 
as the sub-divisions in a state are really nothing but historical 



The Indian Constitution Ch. I 

or administrative circumscriptions without an extensive 
local autonomy of right, the state is simple in form, not 
federal." 

Unions: — Unions are of various kinds. They may be 
personal unions, where two or more states, wholly separate 
and distinct in their external and interna] relations, are 
associated under the same reigning sovereign. The only 
bond of union is the Crown eg. between England and 
Hanover between 1714 and 1837. A real union results from 
the joining together of two or more states, not merely 
through the common ruler " but through the creation of 
common constitutional or international arrangements for the 
administration of common affairs." Hall says that '* such a 
union occurs when states are indissolubly combined under 
the same monarch, their identity being merged in that of 
a common state for external purposes, eg. old Austria- 
Hungary, Norway and Sweden from 1S15 to 1905." 

Confederations: — There are leagues or unions of states 
which seem to fall somewhere between mere alliance and 
federation. They differ from alliance in having a form 
of common government, so that they act through a single 
recognised authority in matters affecting the whole body 
mainly in respect of external relations. They differ from 
federations in that this common government deals only with 
the constituent states and not directly with their individual 
citizens. The old American Confederation was of this 
type. Willoughby states the distinction thus in his 
" Fundamental Concepts of Public Law ": — " In the federal 
state, a true central state is created, its several units are 
legally and constitutionally united, and sovereignt)' resides 
in the central federal body. In the Confederacy, the 



Introductory Explanations 

individual states retain their character as States, and the 
relations to each other are of an international or treaty 
character. Consequently no central state is created, and 
sovereignty lies wholly within such individual political 
units. What union there is in the confederacy is the creation 
of the wills of individual states. In the Federal State its 
foundation rests in itself." 

Federations: — "The name federal government may be 
applied to any union of component members where the 
degree of union between the members surpasses that of mere 
alliance, however intimate, and where the degree of in- 
dependence possessed by each member surpasses anything 
which can come under the head of mere municipal 
freedom. " ( Freeman ). Federation is often a device 
invented by constitutionalists for the proper governance of 
unweildy areas. Sidgwick points out that the maintenance 
of the federal system in the United States of America may 
be partly attributed to a sense of the difficulty of governing 
the vast territory by the methods of a unitary state. The 
two essentials for the formation of a federation are a desire 
for union but not for unity, and some common interests such 
as language, racial affinities, culture, civilisation, traditions, 
&c. The characteristics of a federation are the supremacy 
of the Constitution (with its attendant consequences that 
the constitution must be written as embodying the terms 
of a solemn contract, that the constitution must be rigid, 
and that the legislature in a federation is a non-sovereign 
law-making body ), the separation of powers, and the 
authority of courts. It is also pointed out by Dicey that 
when compared to a Unitary constitution, federal govern- 
ment is weak, that the constitution leads to conservatism 



The Indian Constitution Ch. 1 

( being like a slumbering monarch hard to rouse ), that it 
leads to the predominance of the judiciary and that litiga- 
tion is substituted for legislation. It is, however, pointed 
out by Munro in his book " United States of America, " 
that for internal efficiency federal government is as good as 
any other form; the weakness, if any, will be only if the 
foreign policy of the federation is aggressive with a view to 
getting the benefit of territorial aggrandisement. 

The American Constitution:— For noting the analogous 
conditions in other federations, a few points may be men- 
tioned. The central legislative power in the United States 
of America is vested in the President and the Congress, 
which consists of two Houses, the Senate and the House of 
Representatives. The Senate is composed of two represen- 
tatives from each State chosen for six years. The Vice- 
President of the United States is thePresidentof the Senate. 
For the President, its consent is necessary in the appoint- 
ment to public offices and the conduct of foreign affairs. 
The House of Representatives is composed of members 
elected for two years by various States in proportion to the 
size of their population. The assent of both Houses is 
required for any measure. If the President dissents, the 
measure is returned to the House which initiated it, and if 
it is again passed by a majority of two-thirds in both 
Houses, it becomes law. The Supreme Court has power to 
try all cases arising under the Constitution, each individual 
State having also a separate Court with exclusive jurisdi- 
ction in matters not involving the interpretation of federal 
statutes. Amendments to the Constitution may be pro- 
posed by the Congress with the approval of two-thirds of 
both Houses, or by a convention summoned on the 



Introductory Explanations 

application of two-thirds of State legislatures. The proposed 
amendments must be subsequently ratified by at least three- 
fourths of the State legislatures. Powers not delegated to 
the centre, nor prohibited by it to the States, are reserved 
to the States. The central executive is vested in a Presi- 
dent, who is elected together with the Vice-President for 
four years. 

The Swiss Constitution :~In Switzerland, side by side 
with a federal government, the legislative powers of which 
are strictly defined, there exist the local legislatures of the 
various Cantons with undefined legislative powers. The 
Federal Government consists of (i) a Federal Executive 
Council composed of seven members, elected by both 
Houses of the legislature sitting together in Congress, for 
three years. (2) a Federal Legislature consisting of two 
Houses, viz., the Council of States, composed of two 
members elected from each of the cantons, and the 
National Council composed of members elected for three 
years by the people in each canton in proportion to their 
population. The members of the Federal Executive Council 
may introduce a measure or speak in either House but 
they cannot vote. The President and the Vice-President 
are nominated annually by the Legislature. The Federal 
Council has certain Judicial powers in deciding questions 
of constitutional and administrative law. They are not 
dismissable by the legislature. The Judiciary is composed 
of ninteen members chosen by the legislature for six years. 
It has no power to decide the validity of laws passed by 
the federal legislature or to decide cases of administrative 
law. No alteration of the constitution can be effected 
without resorting to referendum. 



The Indian Constitution Ch. I 

The Australian Constitution :-The Australian Common- 
wealth exhibits the following characteristics: — (i) a 
Federal form of Government, (2) a Parliamentary Executive; 
(3) an effective method for amending the Constitution. 
The powers of the federal government, both executive and 
legislative, are, though wide, definite and limited; the powers 
of the separate States are indefinite, so that any power not 
assigned by the Constitution to the Federal Government 
remains vested in each of the several States. The House 
of Representatives represents numbers; the Senate represents 
the States of the Commonwealth; and each of the Original 
States is entitled, irrespective of its size and population, to 
an equal number of senators. The courts and ultimately 
the Federal Supreme Court, are intended to be the inter- 
preters, and in this sense the protectors of the Constitution. 
The Executive of the Commonwealth is a Parliamentary 
Cabinet. A law changing the Constitution must be passed 
by an absolute majority of each House of Parliament; it 
must then be submitted to the electors of the Common- 
wealth; if in a majority of the States, a majority of the 
electors voting approve the law, and a majority of all the 
electors voting approve the law, then it will duly become 
law according to the usual procedure. ( Dicey. ) 

If the constitution can be altered by the same process and 
body by which ordinary laws are passed, then the constitution 
is said to be flexible; otherwise it is rigid. Under " admini- 
strative law" as distinguished from the 'Rule of Law' prevalent 
in England, tribunals separate and distinct from the ordinary 
courts of justice, and constituted on different principles, are 
provided for the adjudication of disputes between private 
individuals and public authorities, and of disputes among 
administrative officials themselves. 



Chapter II 

HISTORICAL SURVEY. 

Inlroductory: — It is customary, to divide the Consti- 
tutional History of Modern India into certain well-marked 
periods, viz. (i) from 1600 to 1765 — the period of charters 
to the East India Company, (2) from 1765 to 1857 — the 
period of territorial sovereignty of the Company, (3) from 
1858 to 1919 — the period of sovereign Government by the 
Crown, and (4) the period of Responsible Government 
from 1 9 19. 

The period of Charters: — During the first of these 
periods, thirteen charters were granted. Among other 
conditions, it was provided that the laws made by the 
Company were to be "reasonable and not contrary to the 
laws, statutes and customs of the English realm." 

The Second period:— The period of territorial sove- 
reignty of the Company commences with the grant of the 
Diwani to the Company by the Moghul Emperor in 1765. 
The Regulating Act of 1773 "definitely recognised the 
political functions of the Company, but asserted for the 
first time the right of Parliament to dictate the form 
of Government for the Company's possessions." It cieated 
a Governor-General of Bengal in Council in Calcutta, with 
power of control over Madras and Bombay, and with 
legislative authority to promulgate Ordinances and Regula- 
tions. A Supreme Court was constituted in Bengal and 
a Court of Directors in England. The Act of 1781 rectified 



The Indian Constitution Ch. II 

some of the defects of the Regulating Act by settling the 
question relating to the jurisdiction of the Supreme Court, 
and by exempting the public servants of the Company from 
the jurisdiction of the Court for acts done in their official 
capacity. The court was to administer the personal law 
of the defendant, and to respect the religious customs of 
people. The Act of 1784 placed the Government in India 
under the Board of Control in England. The Act of 1793 
contained the official declaration of the disavowal of a 
policy of extension and expansion of territories. The Act 
of 1800 created a Supreme Court at Madras. The Act 1807 
conferred some legislative powers on the Governors in 
Council at Bombay and Madras. The Act of 1813 em- 
powered the local governments to impose taxes on persons 
subject to the jurisdiction of the Supreme Courts. The Act 
of 1835, while permitting the immigration of Europeans, 
empowered the Governor-General in Council to provide for 
"the protection of the natives from insults and outrages 
in their religions and opinions. " Equality of opportunity 
for the admission of qualified Indians to the Public Service 
was enunciated. A Law Member was added as an 
extra-ordinary member of the Council of the Governor- 
General of India. His function was to help in making laws 
and Regulations. The legislative powers of the Governors 
of Madras and Bombay were taken away. The Indian Law 
Commission was constituted. The Act of 1853 made the 
Law Member an ordinary Member of the Governor- 
General's Council with power to sit and vote on all matters 
like other members. The Executive council was expanded 
for legislative purposes by the appointment of six more 
persons as additional members for legislation; each of the 
local Governments of Madras, Bombay, Agra, and Bengal, 

a 



HlSTORTCAI, SriRVEV 

had to send one ofticial representative; the otlior two were 
the Chief Justice and a Puisne Judge of the Supreme Court 
at Calcutta. The proceedings of the Legislative council 
were held in public and were published from time to time. 
The Act of 1854 laid down the "mode of passing Letters 
Patent and other Acts by the Crown relating to India. " 

Period of Sovereign Government by the Crown: — The 

Act of 1858 transferred the Government from the Company 
to the Crown and created the Secretary of State and the 
Council of India. The East India Company however 
wrote: — " Let Her Majest}' appreciate the gift; let Her take 
the vast country and the teeming milh'ons of India under 
her direct control; but let her not forget the great corpora- 
tion from whom she has received them, nor the lessens to 
be learnt from its success. " Her Majesty's Proclamation 
expressed the earnest desire "to administer the Government 
for the benefit of all our subjects resident tlierein. " The 
following extracts from that Magna Carta of India are 
noteworthy: — "We desire no extension of our territorial 
possessions. We shall respect the rights, dignity, and honour 
of native Princes as our own. It is our further will, that, 
so far as may be, our subjects of whatever race or creed, be 
freely and impartially admitted to office in our service ". 
( See Appendix F ) 

The Indian Councils Act ofi86iwas passed because 
the Legislative Council created by the Act of 1853 converted 
itself into an Anglo-Indian House of Commons. The new 
Act enlarged the Executive Council of the Governor- 
General by adding a gentleman of the legal profession, 
a jurist rather than a technical lawyer. The Legislative 
Council vras to consist of not less than six and not more 



C.L. 2 



/ 



The Indian Constitution Ch. II 

than twelve additional members, of whom at least one- 
half should be non-official members. Madras and Bombay 
got back their legislative powers; but the assent of the 
Governor-General was required for the Provincial ActS; The 
Legislatures were merely advisory bodies. 

The High Courts Act of 1861 empowered the Crown 
to establish High Courts at Madras, Bombay and Calcutta, 
with a Chief Justice and not more than 15 judges. In 1866 
the Allahabad High Court was created. 

The Act of 189 2: — The Indian Councils Act of 1892 
enlarged the size of the Legislative Councils and the scope 
of their functions, and changed the method of nomination 
of members. The Governor.General's Council was to have 
not less than ten and not more than sixteen members; the 
Councils at Bombay and Madras were to have not less than 
8 and not more than 20; the Bengal Council was to have not 
more than 20, and the Council for the N. W. Provinces not 
more than fifteen. The members recommended or elected 
by certain bodies or territorial groups were to be nominated 
by the Government. The Councils could discuss the annual 
Financial statement, without power to vote, and could 
interpellate Government on matters of public interest. 

In August 1907 two Indians were appointed as 
members of the Council of India. In March 1909 Mr. S. 
P. Sinha was appointed as Law Member of the Government 
of India. 

The Minto=MorIey Reforms: — The Indian Councils Act 
of 1909 effected improvements in the constitution and 
functions of the Legislative bodies in India, and introduced 
the principle of separate electorates. The maximum for 



10 



Historical Survey 

the Governor-General's Council was fixed at 60; that for 
the Punjab and Burma at 30; and for other Provincial 
Councils at 50. Except the Imperial Legislative Council, 
all the others had a non-official majority. A large number 
of non-officials were elected by territorial and other 
constituencies, while some were nominated also. The 
non- official members of the Provincial Legislative Council 
were the general electorate for the Imperial Council, which 
had also special electorates for land-holders, Muhammadans, 
and the Bengal and the Bombay Chambers of Commerce. 
The same system of general and special electorates was 
followed in the case of the Provincial Councils. The right 
to discuss and vote on matters of general public interest, 
to discuss and vote on resolutions relating to the preliminary 
Financial Statement under items open to discussion, to 
discuss, but not to vote on, the Budget, to put supplementary 
questions Restricted to the original interpellator only), 
constituted the salient features of the Minto-Morley Reforms 
of 1909. Viscount Morley however said; — " If I were 
attempting to set up a Parliamentary system in India, or if 
it could be said that this chapter of reforms led directly 
or necessarily to the establishment of a Parliamentary 
system in India, I, for one, would have nothing at all to do 
with it." An Indian was appointed as member of the 
Executive Council of the Governor in each of the Provinces, 
which had an Executive Council, though this depended on 
convention and was not made a statutory obligation. 

THE MONTAGU-CHELMSFORD REFORMS. 

Genesis:— The auspicious event of the Imperial visit in 
December, 191 1, the creation of the Presidency of Bengal 
annulling the settled fact of the Partition, the creation of 

11 



The Indian Constitution Ch. II 

an Executive Council for Bihar and Orissa; the conferment 
of authority to create Legislative Councils for territories 
under Chief Commissioners, the creation of a High Court 
at Patna under the powers conferred by the Indian High 
Courts Act, 19 II, are the points to be noted in the interval 
before 1919. A variety of circumstances contributed to the 
introduction of the Montford Reforms of 19 19 within ten 
years of the Minto-]\Iorley Reforms. India's contribution 
to the prosecution and successful termination of the War 
was marvellous. Sir M. Visvesvarayya, in his book 
" Planned Economy for India "says: — "It maybe mentioned 
that in the Great War ( 19 14-18 ) the total contribution of 
personnel by India was 1,457,000 men, of whom, 1,381,000 
served overseas. This is equivalent to about 25% of the 
total contributed by Great Britain. The Overseas Dominions 
sent between them 12% of the same total." ''The bare 
list of donations by Princes fills 200 printed pages. In 
money, in cars, and in supplies, the aggregate value of 
these gifts totals many millions." " The casualities on the 
Indian side amounted to nearly a lakh of soldiers." These 
and the large contributions from the Indian Exchequer and 
the Indian public naturally kindled hopes of a substantial 
recognition. The agitation for reforms was carried on by 
the Home Rule Leagues. The Congress and the re-organised 
Moslem League put forward joint proposals known as the 
Congress-League Scheme embodying the minimum demands 
of the nation. Nineteen members of the Imperial Legis- 
lative Council submitted to the Governor-General the 
" Nineteen Pvlemorandum " embodying the reforms requir- 
ed. Then came the Mesopotamia Commission and the 
resignation of IMr. Austen Chamberlain of his post of the 
Secretary of State for India. On the ^oth August, 1917, 

12 



Historical Survey 

Mr. Montagu, the new Secretary of State, made the historic 
dechiration that " the policy of His Majesty's Government, 
with which the Government of India are in complete accord, 
is that of the increasing association of Indians in every 
branch of the administration and the gradual development 
of self-governing institutions with a view to the progressive 
realisation of responsible government in India as an integral 
part of the British Empire. The British Government and 

the Government of India must be the judges of the 

time and measure of each advance", as progress can only 
be achieved by successive stages. These and other points 
were embodied in the Preamble to the Government of India 
Act of 19 19. ( Appendix F ). 

The Secretary of State and the Governor-General 
toured in India with some other colleagues and drew up 
their Report on Indian Constitutional Reforms ( the 22nd 
April 19 iS) which formed the basis for a bill introduced in 
Parliament. Three Committees viz. the Southborough 
Committee, the Feetham Committee, and the Crewe Com- 
mittee submitted their reports on the various Constitutional 
problems. The Bill, after the usual stages, including consi- 
deration by a Joint Select Committee under the chairman- 
ship of Lord Selbourne, was placed on the statute-book 
as the Government of India Act of 191 9. 

The Central Government:— The Reforms of 1919 did 
not introduce any new changes in the Central Executive 
except that a convention was adopted of appointing three 
Indians as Members of Governor- General's Executive Council. 
Sir John Marriott writes thus in his " English Political 
Institutions ":•—" The changes introduced by that Act ( of 
1919) into the Supreme Government of India, though 

Id 



The Indian Constitution Ch. II 

considerable, are relatively unimportant. Now, as formerly, 
executive power is vested in the Viceroy and his Executive 
Council, who are appointed by the Crown, and are res- 
ponsible to the Secretary of State in Council and Parlia- 
ment. The Government, in fact, remains an autocracy 
tempered by a bicameral Legislature. The right of granting 
supplies and of legislation is vested ordinarily in the 
Legislature; but in order to prevent a deadlock between 
the legislature and the executive, the Viceroy is empower- 
ed, when necessary, to override the will of (he legislature 
both in regard to legislation and taxation. " The lower 
House ( the Assembly ) got the right to elect its own 
President after the first four years, and to elect the Deputy 
President from the very beginning. The constitution of 
standing committees, a substantial elected majority in the 
Assembly, the right to move adjournments of the House 
to discuss matters of urgent public importance, and to 
divide the House for the grant of votable items in the 
Budget were the other improvements. 

Dyarchy: — In the Provinces, the system known as 
Dyarchy was introduced by which Ministers were placed in 
charge of transferred subjects like local self-government, 
public health, education, agriculture &c. The Members 
of the Executive Council were in charge of reserved subjects 
like Justice, Finance and Police. Ministers were normally 
selected from and legally intended to be responsible to, the 
legislature. A substantial non-official elected majority (not 
less than 70% ) was fixed for the legislature in the Provinces. 
Practically all the Provinces were brought under a sort of 
uniform administration prescribed |for Governor's Provinces 
with dyarchy as the feature. 

U 



Historical Survey 

Miscellaneous.'— A Royal Commission was to examine 
the question of further instalment of Reforms on the expiry of 
ten years. The salary of the Secretary of State was placed 
on the British Estimates. The Act also provided that the 
salary of the Under-Secretaries maybe placed on the British 
Estimates. The number of members of the Council of India 
was to be not more than twelve and not less than eight. 
Provision was made for the appointment of a High Com- 
missioner for India in London, an Auditor-General for 
India and for the establishment of a Public Service 
Commission. The rules for the Constitution of Provincial 
Councils and Central legislature received Parliamentary 
approval in 1920. 

( See Appendices A to F for further details). 

'• Our conception of the eventual future of India is a 
sister-hood of States, self-croverning in all matters of purelj' 

local or provincial interest Over this Congeries of States 

would preside a central government, increasingly representa- 
tive of and responsible to the people of all of them; dealing 
with matters, both internal and external, of common interest 
to the whole of India; acting as arbiter in inter-state relations, 
and representing the interests of all India on equal terms with 
the self-governing units of the British Empire. In this picture 
there is a place also for the Native Stales ". 

( M. C. Report. ) 



15 



Chaptkr III 

CONSTITUTIONAL INVESTIGATIONS 
From 1920 to 193 5. 

Introductory :— On December 2^, 1919, when His 
Majesty King Emperor George V gave the Royal Assent to 
the Reforms Bill, a sympathetic and gracious Proclamation 
was issued from which the following may be noted: " I rely 
on the new popular assemblies to interpret wisely the 
w^ishes of those whom they represent and not to forget the 
interests of the masses, who cannot yet be admitted to the 
franchise.... Equally do I rely on my officers to respect theii 
new colleagues and to work with them in harmony and 
kindness, to assist the people and their representatives in an 
orderly advance towards free institutions." The Financial 
relations between the Provinces and the Central Govern- 
ment were decided on the recommendations of the Meston 
Committee consisting of Sir James Meston, Mr. C. H. 
Roberts (a former Under-Secretary of State for India) and 
Mr. E. Hilton-Young (later on, the President of the Currency 
Commission on the ratio question). This was in March 
1920. Lord Sinha was appointed as Governor of Bihar and 
Orissa. In November 1920 the elections to the Provincial 
and Indian Legislatures were held. His Majesty had origi- 
nally intended to depute the Prince of Wales, '* the 
Ambassador of the Empire ", to inaugurate the Indian 
Legislature; but due to some inconvenience, H, R. H. The 
Duke of Connaught was sent to India for the said purpose. 
In the course of the Royal Message on that occasion, His 

16 



Constitutional, Investigations 

Majesty was pleased to state: — " Simultaneously with the 
new Constitution in British India, I have gladly assented 
to the establishment of a Chamber of Princes. And with 
all my people I pray to Almighty God that by His wisdom 
and under His guidance India may be led to greater pro- 
sperity and contentment and may grow to the fulness of 
political freedom." In the revised Instrument of Instruc- 
tions dated 15-3-1921, there is the following important 
reference: — "For, above all things, it is Our will and 
pleasure that the plans laid by Our Parliament for the 
progressive realisation of Responsible government in British 
India as an integral part of Our Empire may come to 
fruition, to the end that British India may attain its due 
place among Our Dominions." In April 1921 Lord Reading 
became the Governor-General in succession to Lord 
Chelmsford. 

The elections and the working of the Reforms did not 
receive the full co-operation of the country. As H. R. H. 
The Duke of Connaught said, "The shadow of Amritsar 
lengthened over the fair face of India." Even the 
Moderates had their own misgivings regarding the 
adequacy of the opportunities offered for attaining self- 
government with dyarchy as the mechanism for Provincial 
administration. On September 23, 1 92 1, Rai Bahadur Jadunath 
Mozumdar moved a Resolution in the Legislative Assembly 
for the establishment of autonomy in the Provinces and the 
introduction of responsibility in the Central Government, 
( vide Minority Report of the Reforms Enquiry Committee). 
On the 29th September, 1921, Mr. Jamnadas Dwarakdas 
moved an amendment by which he requested the Governor- 
General to appoint a committee of officials and non-officials 

C L. 3 17 



The Indian Constitution Ch. Ill 

to consider the waj's for the introduction of Provincial 
Autonomy and Responsibility at the Central Government. 
Sir William Vincent speaking on behalf of the Government, 
referring to the provision for a Statutory Commission under 
the Act of 1 9 19 for examining the working of the reforms 
and the further instalment of reforms to be granted, quoted 
the following remarks of Mr. Montagu, " If there is a 
remarkable unforeseen development in Indian conditions in 
the short space often years, the Act does not tie the hands 
of Parliament and there can always be a Commission in the 
interval. On Sir William Vincent's suggestion, the following 
amended resolution was passed by the Assembly without 
division: — " That this Assembly recommends to the 
Governor-General in Council that he should convey to the 
Secretary of State for India the view of this Assembly that 
the progress made by India in the path of responsible 
Government warrants a re-examination and revision of the 
constitution at an earlier date than 1929. " To this the reply 
came to the Governor-General in Lord Peel's Desptach of 
November 2, 1922, in which the Secretary of State expressed 
his inability to accept the resolution of the Assembly for 
further steps towards reforms. On the 22nd February, 1923, 
Dewan Bahadur T. Ranga Chari moved a resolution before 
the Assembly expressing extreme dissatisfaction with the 
Peel Despatch. The debate on this was, after some talk, 
adjourned sine die. On the iSth July 1923 Dr. (afterwards, 
Sir. Hari Singh) Gour moved a resolution recommending to 
the Governor-General to move the Secretary of State 
to carry out his suggestions in the Governor-General's 
previous despatch on the subject of further reforms possible 
under the Constitution. This resolution was carried. In 
July 1923, the first Legislative Assembly was prorogued. 

18 



Constitutional Investigations 

The Niitional Congress allowed the Svvarajya Party to 
contest the next elections. The Swarajists entered the 
Legislative Assembly in substantial numbers to be effective 
in opposition. 

The Muddiman Committee: Genesis:— In the beginning 
of 1924, the Labour Party came into power for the first time 
in the History of England, and high hopes of constitutional 
reforms for India were entertained by the Indians. " From 
1 924 began the interminable series of Commissions of Enqiury 
and of formal and informal consultation which culminated 
in the Round Table Conferences and the Bill of 1934." In 
February 1924, Dewan Bahadur Rangachari moved a 
resolution recommending " au early revision of the Govern- 
ment of India Act so that India may secure full self- 
governing Dominion Status." Pandit Motilal Nehru moved 
an amendment suggesting the summoning of a Round Table 
Conference to recommend the scheme of a Constitution for 
India, and the holding of a fresh election, the placing of the 
scheme before the new legislature, and the submission of the 
same to British Parliament for being embodied in a statute. 
On the 8th February, 1924, Sir Malcolm Hailey spoke in the 
Assembly on the question of Dominion Status, and said; — 
"if you analyse the term' 'full Dominion Self-Government, 
you will see that it is of somewhat wider extent, conveying 
that not only the executive will be responsible to the 
legislature but that the legislature will in itself have full 
powers which are typical of the modern dominion. I say 
that there is some difference of substance, because 
responsible government is not necessarily incompatible with 
limited or restricted powers. It may be that full Dominion 
self-government is the logical outcome of responsible 

19 



The Indian Constitution Ch. Ill 

government; nay, it may be the inevitable and historical 
development of responsible government, but it is a further 
and a final step." As the Nehru Report of later years says, 
''the speech constitutes the beginning of a new current of 
thought in official circles in India; and much of constitu- 
tional ingenuity has been displayed in supporting or 
refuting this new interpretation of British Policy." On the 
i8th February, 1924, the amended resolution of Pandit 
Nehru was adopted by the Assembly. The Government 
first appointed an official committee to examine the work- 
ing of the Act and then appointed a formal Committee 
under the Chairmanship of Sir Alexander Muddiman, which 
came to be known as the Muddiman Committee, or the 
Reforms Enquiry Committee. 

The Enquiry: — The terms ofreference to the Committee 
were: — *' ( i ) to enquire into the difficulties arising from, 
or defects inherent in, the working of the Government of 
India Act and the Rules thereunder in regard to the Central 
Government and the Governments of the Governors' 
Provinces; and ( 2 ) to investigate the feasibility and desir- 
ability of securing remedies for such difficulties or defects 
consistent with the structure, policy, and purposes of the Act, 
(a) by action taken under the Act and the Rules, or (b) by 
such amendments of the Act as appear necessary to rectify 
any administrative imperfections. " The Majority Report of 
the Committee was signed by Sir A. P. Muddiman, Sir 
Md. Shafi, the Maharajadhiraja of Burdwan, Mr. A. H. 
Froom, and Sir. H, Moncrieff-Smith; the Minority consisted 
of Dr. Sir. Tej Bahadur Sapru, Sir. P. S. Sivaswamy Aiyar, 
Dr. R. P. Paranjpye, and Mr. M. A. Jinnah. According to 
both sections, the alleged defects of dyarchy were, "i. the 

20 



Constitutional Investigations 

impinging of the administration of reserved upon that of 
the transferred subjects, and vice versa, 2. the absence of 
joint responsibility of the Ministers, 3. the absence of joint 
deliberations between the two halves of the Government, 
4. the attitude of the permanent official towards the reforms, 
their relations with the Ministers, and their general position 
in the constitution. 5. the difficulties in the way of the 
Ministers arising out of the overriding powers of the 
Governors under the Act, the control of the Government of 
India and of the Secretary of State; 7. a. the measure of 
control exercised by the Finance Department, b. the fact 
that under the rules the Finance Department is in the charge of 
a member of the Executive Council, Avho is also in charge 
of the spending department, c. the disqualification of the 
Ministers to hold the portfolio of finance by reason of the 
Devolution Rules ". 

The Muddiman Report:— The Majority Report reco- 
mmended relaxation of the control of the India Office in 
cases affecting purely Indian interests, modification of the 
procedural rules of the Assembly, the practice of joint 
deliberation in the Provinces, the payment of the same 
salary to the Ministers and the Members of the Executive 
Council, relaxation of control of the Governor over the 
Ministers, transfer of some more subjects to the Ministers, 
modification of the franchise, the revision of the Meston 
Settlement, provision for better representation of the 
depressed classes and the factory labourers, the declaration of 
the ineligibility of the Finance Member to be in charge of 
any spending department, the introduction of Public Service 
Commissions. The Minority Report was to the effect that 
Dyarchy was working creakily in the Provinces and 

21 



The Indian Constitution Ch. Ill 

recommended that "the proper question to ask was not whether 
any alternative transitional system can be devised, but 
whether the constitution should not be put on a permanent 
basis, with provisions for automatic progress in the future 
so as to secure stability in the Government and willing 
co-operation of the people; we can only express the hope 
that a serious attempt may be made at an early date to 
solve the question. That this attempt should be made 
whether by the appointment of a Royal Commission with 
freer terms of reference and larger scope of enquiry than ours 
or by any other agency — is a question which we earnestly 
commend to the notice of the Government, " The failure 
of dyarchy was clear. Lord Birkenhead on a later occasion 
described dyarchy as " the kind of pedantic hide-bound 
constitution to which Anglo-Saxon communities had not 
generally responded and unlikely to make a successful 
appeal to the community whose political ideals were so 
largely derived from Anglo-Saxon models ". 

In August 1925, Mr. V. J. Patel was elected as Presi- 
dent of the Legislative Assembly. 

The Government moved for the adoption of the Mud- 
diraan Report. Pandit Motilal Nehru, thereupon pleaded for a 
Round Table Conference for discussing the " National 
Demand," i. e. the minimum reforms acceptable to the 
Congress. The official attitude on this subiect was not 
considered to be satisfactory by the Congress, and so in 
1926 the Swarajist party withdrew from the legislature. 

Lord Reading's Letter to H. E. H. The Nizam:— On 

the 27th March, 1926, Lord Reading explained thus some 
important constitutional points regarding Indian States, 

22 



Constitutional Investigations 

in a letter to His Exalted Hii^hness the Nizam in reply to 
H.E.H, The Nizam's letter dated tlie 20th September, 1925. 
" The sovereignty of the British Crown is supreme in India, 
and therefore no Ruler of an Indian State can justifiably 
claim to negotiate with the British Government on an 
equal footing. Its supremacy is not based only on tteaties 
and engagements, but exists independently of them and, 
quite apart from its prerogative in matters relating to 
foreign powers and policies, it is the right and duty of the 
British Government, while scrupulously respecting all 
treaties and engagements, to preserve peace and good order 
throughout India. The right oL the British Government 
to intervene in the internal affairs/rndian States is another 
instance of the consequences necessarily involved in the 
supremacy of the British Crown. 1 regret that I cannot 
accept the view that the orders of the Secretary of State on 

your representation do not amount to a decision The 

varying degrees of internal sovereignty which the Rulers 
enjoy are all subject to the due exercise by the Paramount 
Power of this responsibility." This letter led, in the words 
of the Nehru Report, to much searching of heart in Indian 
States, and to the constitution of the Butler Committee as 
will be seen later on. 

Lord Irwin:— In April 1926, Lord Irwin became the 
Governor-General in succession to Lord Reading. " Lord 
Irwin won the immediate interest of many Indians because 
he was a keen practising Christian. For five disturbed 
years he maintained his peculiar political austerity, and 
when he left. Englishmen and Indians were discussing the 
future of India on equal terms." ( Thompson and Garret, 
in "Rise and Fulfilment of British Rule in India.") 

23 



The Indian Constitution Ch. Ill 

The Simon Commission:— On the 26th November, 1927, 
the Statutory Commission contemplated under Section 84-A 
of the Government of India Act 19 19, was appointed to 
investigate the nature and extent of the next instalment 
of Reforms, with Sir John Simon as the Chairman. Section 
84-A enacted. — " At the expiration of ten 5'-ears after the 
passing of the Government of India Act, 1919, the Secre- 
tary of State with the concurrence of both Houses of 
Parliament, shall submit for the approval of His Majesty 
the names of persons to act as a Commission for the purpose 
of this Section". By the Government of India (Statutory 
Commission) Act, 1927, word "within" was substituted 
for the words " at the expiration of ". Lord Birkenhead, 
the then Secretary of State, interpreted the Section 
to mean that only Members of Parliament could be 
appointed to the Commission. " The inclusion of two 
Indian Members of the House of Lords would have been 
a useful gesture, " ( Thompson and Garret, who remark 
that if a Muhammadan gentleman was created a peer, 
then he and Lord Sinha could have come in without 
infringing even the interpretation put in by Lord Birkenhead.) 
Referring to these events of 1927, as observed by him 
during his visit to England in that year, the Rt. Hon'ble 
Sir Tej Bahadur Sapru stated, ( see the " Leader " of 
January 14, 1936 ) " At the end of the conversation (with 
Lord Reading ) it was abundantly plain to me that the 
decision which had been taken at that time to exclude 
Indians and to keep the Commission an exclusively 
Parliamentary body had been taken irrevocably. That 
was the only occasion when on a big question I felt some- 
what disappointed with Lord Reading. But I also felt that 
Lord Birkenhead had made up his mind and that it was 

24 



CONSTITUTIONAT. INVESTIGATIONS 

somewhat unfortunate that the Labour Party, which was then 
in opposition, should have agreed with him. In later years it 
was freely admitted to me by several of my English friends 
in England, and at least one or two, or three in India, that 
the decision to exclude public men from India, was 
a most unfortunate one, and the whole course of events 
might have been different if it had not been taken ". 

The Butler Committee:— In May 1927 the Viceroy 
held a conference at Simla, when a representative group 
of Princes asked for the appointment of a special committee 
to examine the relationship between themselves and the 
Paramount Power. So, on the i6th December 1927, the 
Earl of Birkenhead, as Secretary of State appointed a 
committee with Sir Harcourt Butler as Chairman and 
Viscount Peel and Mr, Holdsworth as members, " (i) to 
report upon the relationship between the Paramount Power 
and the Indian States with particular reference to the 
rights and obligations arising from— (a) treaties, engagements 
and sanads, and (b) usage, sufferance and other causes and 
(2) to enquire into the financial and economic relations 
between British India and the States, and to make any 
recommendations that the Committee may consider desira- 
able or necessary for their more satisfactory adjustment." 

In the Christmas of 1927 the Indian National Congress 
resolved to boycott the Simon Commission. In 1928, the 
Indian Legislative Assembly also resolved that it should 
have nothing to do with the Simon Commission. 

The Nehru Report : — On the 12th February 1928, a 
conference of the representatives of all the political parties 
met at Delhi for drawing up a constitution acceptable to 

C. L. 4 25 



The Indian Constitution Ch. Ill 

all the parties, and continued its sittings till February 22, 
1928. "The All Parties Conference was a reply to Lord 
Birkenhead's challenge when he sought to justify the per- 
sonnel of the Simon Commission by a reference to India's 
communal and other dissensions." The Conference appointed 
a committee to report on the following subjects : — 
whether the legislature should be unicameral or bi-cameral; 
franchise; declaration of rights of labour and the 
peasantry; Indian States. The Conference met again on 
the 8th March, and appointed two sub-committees, one for 
enquiring into the financial aspects of the separation of Sind, 
and the other to consider the feasibility of the system of 
proportional representation. The Conference met again on 
the 19th May, 1928, at Bombay, considered the reports of 
the various committees and appointed a committee to 
consider and determine the principles of the Constitution 
for India giving due weight to the representations of several 
organisations and sub-committees for communal unity. 
Pandit Moti Lai Nehru was Chairman, Sir Tej Bahadur 
Sapru, Sir Ali Imam, Mr. M. S. Aney, and Mr. N. M. Joshi 
were among the members. The committee submitted the 
report to Dr. M. A. Ansari, the President of the All Parties 
Conference on August 10, 1928. In the introduction, they 
answer the arguments based on Sir Malcolm Hailey's 
speech of February 8, 1924, already referred to, and the 
objections to the grant of Dominion Status. In the first six 
chapters, the evidence on the various controversial questions 
and the data are analysed. The seventh chapter contains 
the draft definitions and recommendations relating to the 
Constitutional status of India, operation of the constitu- 
tion and the laws, citizenship, fundamental rights, the 
Parliament of India consisting of the Governor-General 



26 



Constitutional Investigations 

representing the King and the Senate and the House of 
Representatives, the Commonwealth Executive consisting 
of the Prime Minister and other Ministers, High Commi- 
ssioner and Foreign Relations, Auditor-General, Provincial 
Autonomy with an Executive responsible to the Legislature, 
constitution and jurisdiction of a Supreme Court, appeal to 
the King in Council, constitution and jurisdiction of High 
courts, Advocate-General, Revenue and Finance, Railway 
and Harbour Fund, Defence, Civil Services, Army Services, 
Indian States, redistribution of Provinces on a linguistic 
basis, future amendment of the constitution, and communal 
representation. The separation of Sind as a separate 
Province was recommended. Two schedules enumerating 
the central and Provincial subjects were also annexed to the 
report. The report (since known as the Nehru Report), was 
adopted by the National Congress in its 1928 Session. 

The Butler Committee Report:— -The Butler Committee 
met at Delhi on January 14, 1928, and issued a questionnaire 
on March i, 1928. They visited fifteen States and returned 
to England in May 1928, when the Rt. Hon'ble Sir Leslie 
Scott, K. C, presented the case of the Princes with the 
assistance of Colonel Sir Kailas Narain Haksar. They 
submitted their report on the r4th February, 1929, to 
Viscount Peel, who had succeeded Lord Birkenhead as 
Secretary of State. 

The Report stated among other things: — "India is one 
and indivisble, made up of the pink and the yellow. The 
problem of statesma nship is to hold the two together. 
Truly it may be said that Indian States are Indian India. 
Paramount Power means the Crown acting through the 
Secretary of State and the Governor-General in Council, 

27 



The Indian Constitution Ch. Ill 

who are responsible to Parliament. The fact of para- 
mountcy has been acted on and acquiesced in over a long 
period of time. It is based on treaties, engagements, and 
sanads, supplemented by usage, sufferance, and by decisions 
of the Government of India and the Secretary of State 
embodied in political practice. The policy of the British 
Government towards the States passed from the original 
plan of non-intervention in all matters beyond its own ring- 
fence to the policy of subordinate isolation. That in its 
turn gave way before the existing conception of union and 
co-operation with the Paramount Power. Lord Canning 
said in 1858: — 'The Crown stands forth as the unquestioned 
ruler and Paramount Power in all India, and is, for the 
first time, brought face to face with its feudatories. There 
is a reality in the suzerainty of the Sovereign of England, 
which has never existed before, and which is not only felt 
but eagerly acknowledged by the Chiefs." In a despatch 
dated the 30th April, i860, he added that flagrant mis- 
government must be prevented or arrested by timely exercise 
of intervention. With this theory of intervention, modern 
political practice began, reaching its zenith during Lord 
Curzon's Viceroyalty. 

The Butler Committee Report refers to the Baroda 
Case (1873-75), the Manipur Case (1891-92), Lord Minto's 
Udaipur Speech of the 3rd November, 1909, and the letter 
of Lord Reading to H. E. H. The Nizam, (noted already) 
as important pronouncements on Paramountcy. Reference 
is made to the demand for codification of political practice 
and the constitution of the Chamber of Princes, whereby 
open conference was substituted for secrecy in ventilating 
the opinion of the Princes on political practice. 

28 



Constitutional Investigations 

The Committee said that " the treaties are made with 
the Crown in England and should be interpreted according 
to their history, circumstances and traditions, but they are 
not merely contractual relationship." "The Paramount Power 
has the right of intervention relating to external affairs, 
defence, and protection and for good government." They 
conclude *' the Princes should not be handed over without 
their agreement to a new government responsible to the 
Indian Legislature. Paramountcy must remain paramount. 
On paramountcy and paramountcy alone can the States rely. 
for their preservation through the generations that are to 
come." They recommended that the Viceroy, and not the 
Governor-General, should be the agent of the Crown in its 
relations with the Princes. They commended the sugges- 
tion " that the time has come to recruit separately from the 
Universities in England for service in the States alone." 
The Report also dealt with the financial and economic 
relations with States, the claims of States to a share of the 
customs revenue, the adequacy of their contribution 
to Imperial Defence, the proposal for a Zollverein, the 
claims of States regarding railways, mints, coinage, manu- 
facture of salt, Posts and Telegraph, opium, excise and 
harbours. 

Paramountcy: — As regards the exercise of Para- 
mountcy, the States can claim a substantially liberal 
attitude in view of what Sir Robert Holland, with so much 
of experience has stated, viz: — " a body of usage influenc- 
ing the relation with the States has come into force through 
a process which though benevolent, was nevertheless, 
to some extent arbitrary." The Nehru Report was of. 
opinion that it was untenable legally and historically to 



29 



The Indian Constitution Ch. Ill 

claim that the treaties were between the Crown and the 
States. But the Butler Committee has recognised the 
relations, as also the Joint Parliamentary Committee of 
later days. As regards the position of the States the Butler 
Committee said: — ''In fact none of the States ever held 
international status. Nearly all of them are, or were, sub- 
ordinate to the Mughal Empire, or the Maharatta Supre- 
macy, or the Sikh Kingdom, and depending on them. Some 
were rescued, others were created by the British/' It may 
be that all the attributes according to International Law 
were not possessed by the States. But a perusal of many trea- 
ties will show that they were not considered to be mere non- 
entities as the quotations would imply. The successful 
rebellion of these states from the respective supremacies 
referred to was recognised by the Company by entering 
into separate treaties, instead of dealing with the alleged 
masters holding the supremacy, if any. Their independent 
status has been recognised by the treaties ignoring the 
masters, under whom they were. There was nothing to 
prevent the States from contracting agreements with the 
Company of their own right. In an^'' case, some principles 
of international law may be indirectly invoked for analogy 
in suitable cases in settling disputes between British India 
and Indian States. 

The Simon Commission Enquiry— The Simon Commis- 
sion paid two visits to India, the first lasting from the 3rd 
February 1928, to the 31st March 1928, and the second 
from the nth October 1928 to the 13th April 1929. They 
proposed the method of " Joint Free Conference" by which 
an Indian wing of the conference to work as colleagues of 
the Commissioners was created. A central committee 



30 



CONSTlTUIiONAL INVESTIGATIONS 

composed of the members elected by the Indian Legishiture 
was to sit with the Commission during the whole of their 
tours and delibeiations in public,while Provincial Committees 
elected by the respective provincial legislatures were to 
sit with the Commission in the respective provinces. The 
Central Provinces Legislative Council did not elect a com- 
mittee. The Indian Legislative Assembly also did not elect 
any representatives, and so the Governor-General nominated 
some of the Assembly members to the Central Committee. 
All other legislature?? elected members to the committees 
to which they were asked to elect representatives. 

The General Elections in Britain brought the Labour 
party in office, and reliance was placed on the speech of 
Mr. Ramsay MacDonald some time before taking office 
( July 2, 1929 ) in which he said: — "I hope within a period 
of months rather than years, there will be a new Dominion 
added to the Commonwealth of Nations, a Dominion of 
another race, a Dominion vrhich will find self-respect as an 
equal within the Commonwealth. I refer to India". 

The Joint conference of the Simon Commission and of 
the Indian Central Committee met between the 19th June 
1929, and the 30th July, 1929. On the i6th October, 1929, 
Sir John Simon addressed a letter to the Prime Minister 
(Mr. Ramsay MacDonald ) in which he stated: — "As our 
investigation proceeded, we have become more and 
more impressed, in considering the direction which the 
future constitutional development of India is likely to take, 
with the importance of bearing in mind the relation which 
may develop between British India and the Indian States. 
It is evident to us that whatever may be the scheme which 
Parliament will ultimately approve for the future constitution 

31 



The Indian Constitution Ch, III 

and governance of British India, it is essential that the 
methods by which the future relationship between these two 
constituent parts of Greater India may be adopted, should 
be fully examined. It seems to us that what would be 
required would be the setting up of some sort of conference, 
and that in this conference His Majesty's Government woud 
meet both representatives of British India and representa- 
tives of the States (not necessarily together) for the purpose 
of seeking the greatest possible measure of agreement for 
the final proposals which it would later be the duty of His 
Majesty's Government to submit to Parliament. The 
procedure by the Joint Parliamentary Committee conferring 
with delegations from the Indian Legislatures and other 
bodies, which was previously contemplated and is referred 
to in my letter to the Viceroy on February 6, 1928, would 
still be appropriate for the examination of the Bill, when it 
is subsequently placed before Parliament; but would, we 
think, obviously have to be preceded by such a conference 
as we have indicated." 

To this, the Prime Minister replied on the 25th Octo- 
ber, 1929, in which he said: — "His Majesty's Government 
are also greatly concerned to find means by which they 
may approach the treatment of the broad question of 
British-Indian constitutional advance in co-operation with 
all those who can authoritatively speak for British-Indian 
opinion. They will propose to invite representatives of 
different parties and interests in British India and repre- 
sentatives of Indian States to meet them separately or 
together, as the circumstances may demand, for the purpose 
of conference and discussion in regard both to the British- 
Indian and All-Indian problems. It will be their earnest 

92 



CONSTITUTIONAI, INVESTIGATIONS 

hope that by this means it may subsequently prove possible 
on these grave issues to submit definite proposals to Parlia- 
ment, on a wide measure of general assent. With my best 
wishes for the success of your future labours " 

An interim report on the progress of education in India 
was submitted by the Auxiliary Committee of which Sir 
Philip Hartog was the chairman. 

In the summer of 1929 Lord Irwin went to England 
to confer with the British Cabinet on the proper solution 
of the Indian Constitutional problem. On his return he 
made the following important declaration on the 31st 
October, 1929: — "I am authorised, on behalf of His Majesty's 
Government, to state clearly that, in their judgment, it 
is implicit in the declaratien of 19 17 that the natural 
issue of India's constitutional progress as there contem- 
plated, is the attainment of Dominion Status. His 
Majesty's Government will propose to invite representatives 
of the Indian States to meet them separately or together.... 

for the purpose of conference and discussion both of the 

British Indian and All-India problems." 

The Simon Report : — In November 1929, the Provin- 
cial Committees and the Central Committee sent their 
reports to the Simon Commission. On 12th May 1930, 
the Simon Commission submitted the report to Parliament. 
In July 1930, the Indian Legislative Assembly declared 
that the recommendations of the Simon Commission were 
inadequate and unacceptable ( See Appendix H. i — for 
select opinion. ). 

If the constitution of the Simon Commission engender- 
ed uneasy feelings, the publication of the Report "only 

c- L. 5 . 33 



The Indian Constitution Ch. Ill 

intensified the civil disobedience movement " which 
was already in swing from March 1930. The Commission 
stated: — "In writing this report we have made no allusion to 
the events of the last few months in India. In fact, the whole 
of our principal recommendations were arrived at and 
unanimously ngreed upon before these events occurred. We 
have not altered a line of our Report, for it is necessary to 
look beyond particular incidents and take a longer view. " 
With regard to the recommendations themselves, it was 
hardly likely that with the All Parties Report before them 
even the more moderate section of the public in India 
would have been satisfied with the reforms suggested by the 
Simon Commission. "Beyond a few adjustments to a creaky 
machinery, nothing very far-reaching was suggested. While 
dyarchy was to terminate, the Ministers in the Provinces 
may be elected members of the legislature or not, and 
where and when the Governor considers it necessary, it 
v/ill contain an official element. Indirect election was 
recommended for the Central Legislative Assembly to be 
renamed the " Federal Assembly ", the electors being the 
members of the respective provincial legislature. Indirect 
election was recommended for the Council of State in the 
case of those Provinces which had a second chamber. The 
Assembly was to have tiie right to vote certain indirect 
taxes also to be selected by the Governor-General himself. 
The central executive was to be the same as that under the 
Act of 1 91 9 with the prescribed qualification of service 
under the Crown for ten years for three of its members. 
The Commander-in-chief was not to be a member of the 
executive Council or of the legislature. The Security 
Services ( Police and the I. C. S. ) were to be recruited by 
the Secretary of State; the same system was to be extended 

34 



Constitutional Investigations 

to the Irrigation and the Forest Services. The 
programmes of Indianisation laid down by the Lee 
Commission which were themselves complained by the 
Indians to be inadequate, were to he maintained. The High 
Courts were to be centralised as also the expenditure there- 
for. The size of the Council of India was to be reduced with 
more recent Indian experience being required for member- 
ship. A Council of Greater India v^as to be constituted with 
consultative and deliberative functions for discussing 
matters of common concern between Indian States and 
British India. " In the atmcsphere in which it was issued 
it did not receive a favourable consideration. 

Round Table Conference:— As foreshadowed in the 
Prime Minister's letter to Sir John Simon in October 1929, 
and in Lord Irwin's speech of October 1929, the First 
Round Table Conference was held in the autumn of 1930 
and January, 1931. '' The Simon Report was shelved, and 
the Conference began working out the terms of an early 
federation." The federal idea was expounded by the British 
Indian delegates and agreed to by His Highness the 
Maharaja of Bikaner, on behalf of the States' delegates. On 
the 15th January 1931, in a concluding address to the 
Conference on the safeguards for the minorities, the Prime 
Minister said:— ^' In such statutory safeguards as may be 
made for meeting the needs of the transitional period, it 
will be a primary concern of His Majesty's Government 
to see that the reserved powers are so framed as not to 
prejudice the advance of India through the new constitution 
to full responsibility for her own government. " 

The Federal Idea: — The delegates from British India and 
the Indian States returned to India with the determination 



35 



The Indian Constitution Ch. Ill 

to help the cause of federation. There was, however, 
a trend of thought among the States which wanted that 
the Princes should not join the federation each in his own 
manner and on his own terms, but should meet in the 
Chamber of Princes for entering the Federation as a body. 
Later, the general terms for federation were settled, 
and the differences were only regarding the seats in the 
Houses of the Central legislature. This was facilitated by 
the idea of some association with Indian States having been 
before the public and the statesmen for a long time. Lord 
Lytton's proposal to constitute an Imperial Privy Council 
comprising some of the great Princes, Lord Dufferin's institu- 
tion of the Imperial Service Troops, Lord Curzon's plan for a 
Council of Ruling Princes, Lord Minto's scheme for an 
Imperial Advisory Council and for an Imperial Council of 
Ruling Princes are instances. " Lord Hardinge made 
no secret of his desire to seek the collective opinion of the 
Princes as trusted colleagues on matters affecting their Order. 
And in responding to His Excellency's invitation, Their 
Highnesses The Maharajahs of Gwalior and Indore also 
laid stress upon the essential identity of interest between 
the two halves of India. Lord Chelmsford carried the 
system of conferences further by utilising them for the 
purpose of discussing general questions affecting the States 
as a whole; and His Highness the Maharaja Gaekwar in 
welcoming the new development expressed the hope that 
M''hat had by that time become an annual conference, would 
develop into a permanent Council or Assembly of Princes. 
Moreover the claim of the States to be heard in matters of 
Imperial concern were signally recognised by the deputation 
of His Highness the Maharaja of Bikaner to the meeting of 
the Imperial Conference and the War Cabinet." (M, C. 

36 



Constitutional Investigations 

Report). In 1918 His Highness the Maharaja of Patiala 
was similar!}' deputed. In the Montagu-Chelmsford Report, 
it is stated, "Looking ahead to the future, we can picture 
India to ourselves as presenting the external semblance 
of some form of federation. The provinces will ultimately 
become self-governing units, held together by the Central 
Government, which will deal solely with matters of 
common concern to all of them. But the matters common 
to the British Provinces are also to a great extent those 
in which the Native States are interested — defence, tariffs, 
exchange, opium, salt, railways, and posts and telegraphs. 
The natural concentration of the Government of India upon 
such matters will, therefore, make it easier for the States, 
while retaining the autonomy which they cherish in internal 
matters, to enter into closer association with the central 
Government if they wish to do so. " *The constitution 
of the Chamber of Princes was another step. The Procla- 
mation of the 8th February 1921, contained the declara- 
tion: — "In my former Proclamations I repeated the assurance 
given on many occasions by My Royal Predecessors and 
Myself, of My determination ever to maintain unimpaired 

* Dicey wrote in 1914« thus, " Thirty years ago the 
nature of Federalism had received in England very inadequate 
investigation. In this, as in other matters, 1914 strangely 
contrasts with 1884. The notion is now current that federalism 
contains the solution of every Constitutional problem which 

perplexes British Statesmanship FederaHsm in short 

has at present the vague and therefore the strong and imagina- 
tive charm which has been possessed at one time throughout 
Europe by the Parliamentary Constitutionalism of England, 
and at another by the revolutionary republicanism of France." 

37 



The Indian Constitution Ch. Ill 

the privileges, rights^ and dignities of the Princes of India. 
The Princes may rest assured that this pledge remains 
inviolate and inviolable." The Indian States always get 
the advantage of representation in the annual delegation to 
the Assembly of the League of Nations. The Butler 
Committee Report also stated "We have jeft the door open 
to closer union. There is nothing in our proposals to pre- 
vent the adoption of some form of federal union. " In 
November, 1929, His Highness the Maharaja of Bikaner 
said: — "The Princes have openly given expression to the 
belief that the ultimate solution of the Indian problem and 
the ultimate goal — whenever the circumstances are favourable 
and the time is ripe for it — is Federation, which word has no 
terrors for the Princes and the Government of the States." 
It will thus be seen that the idea of some sort of union was 
acceptable to public opinion for some time past, though 
views might differ as to details regarding the powers to 
be vested in the central government. Discussion was rang- 
ing on the nature of the federal subjects and the seats due 
to the States in the federal legislature. 

The British Indian Delegates had known the difficulties 
and complications of the problem of federation equally well, 
as the work in the sub-committees had shown them. The 
sub-committees examined questions relating to Federal 
Structure, N.W. F. Provinces and other provinces, Franchise, 
Services, Burma, Defence, Sind separation and Minorities. 
So, they, on their return to India, impressed both on the 
Government and on the Congress the necessity for arriving 
at some agreement. As a result, on the 5-3-31, theGandhi- 
Irwin Pact was concluded; the Congress decided to suspend 
the Civil Disobedience Movement, and to participate 

38. 



CONSTITUTIONAI- INVESTIGATIONS 

in the Second Round Table Conference. The pact was 
ratified by the Karachi Congress, 1931. 

Lord Irwin left India in April I93i,and was succeeded 
by Lord Willingdon. 

The Second R. T. C: — Mahatma Gandhi went to the 
Second Round Table Conference as the sole representative 
of the Congress. By that time, the Labour Party was out 
of office in Britain ( September 1931 ), and so the Govern- 
ment attitude was supposed to have 'stiffened a bit.' After 
a series of meetings, especially of the Federal Structure Com- 
mittee, the Conference dissolved as no solution could be arrived 
at regarding the allocation of seats in the legislatui<e. Three 
Committees were appointed to tour in India and submit 
reports. They were (i) to investigate the revision of the 
franchise and the constituencies, (2) to report on the reco- 
mmendations of the Federal Finance Committee, and (3) 
to examine financial and other problems relating to the 
States and the Federation. Each State had its own indivi- 
dual claims to put forward before the conditions of joining 
the federation were finally settled.* 

* There are 109 States of which the Rulers are members 
of the Chamber of Princes in their own right, with a population 
of 60 millions and a revenue of 43 Crores of rupees There are 
126 States represented by 12 Rulers elected from among 
themselves, with a population of 8 millions, and a revenue of 
2 Crores of rupees in the aggregate. Besides these there are 
the 300 Estates and Jagirs held on grants and Sanads. " It 
includes also States economically, politically and administra- 
tively advanced, and States, patriarchal or quasi — feudal in 
character which still linger in mediaeval atmosphere: States 
with varying political powers." 

39 



The Indian Constitution Ch. Ill 

The Committees:-The 5'oar 1932 opened with a regular 
programme by the Government for the vindication of law 
and order by putting down the civil disobedience move- 
ment in its disturbing features. From January 1932, the 
North West Frontier Province was raised to the status of 
a Governor's Province. In January 1932, a Consultative 
Committee was constituted by the Government of India 
for considering the recommendations of the Franchise 
( Lothian ) Committee, Federal Finance I, Percy ) Committee 
and the Indian States Enquiry ( Davidson ) Committee, 
when their reports were published. But the meetings of 
the Consultative Committee were twice postponed. 

Communal Award:— On the 17th August 1932, the 
Prime Minister decided the question of allotment of seats 
by what came to be called the ' Communal Award '. The 
importance of the problem can be seen from the figures 
furnished in the Simon Report. In Bengal, the Muhamma- 
dan population amounts to 25^ millions out of 47 millions; 
in the Punjab ii| millions out of 20 millions; in Assam 
the Muhammadans constitute 28% of the population; in 
Bombay 19%; in U. P. 14%; in Bihar and Orissa 10%; in 
Madras 6%; in C. P., they are half a million out of 14 
millions; in N. W. F. P., they are 2 millions of 2 J millions; 
in Indian States the total Hindu population is 53^- 
millions, while the Muhammadans are 9^ millions; the 
Hyderabad State has a population of 12^ millions out of 
which 2 millions are Muhammadans. The Prime Minister 
stated:—" We should only be too glad if at any stage 
before the proposed Bill becomes law, the communities 
can reach an agreement among themselves. But the Govern- 
ment are convinced that no further negotiations will be of 

40 



CoNSTITUTIONAt INVESTIGATIONS 

any advantage, and they can be no party to them. They 
will, however, be ready and willing to substitute for their 
scheme, an)' scheme whether in respect of any one or more 
of the Governor's Provinces or in respect of the whole of 
British India, that is generally agreed to and accepted by 
all the parties concerned ". 

There were differences of opinion regarding the grant 
of separate electorates to the so-called ' Depressed Classes '. 
They form 57% of the Hindu population in Bengal; 
31% in U. P.; 42% in the Punjab; 33% in C. P.; 18% in 
Madras; and 1 1 "^ in Bombay ( Simon Report). Mahatma 
Gandhi, who was then in prison, resolved on a ' fast 
unto death,' from the 20th September, 1932, unless the 
scheme of separate electorates for these classes was 
modified. After the strenuous efforts of the Hindu leaders 
including Dr. Ambedkar, a pact which came to be known as 
the Poona or Yervvada Pact was arrived at on the 25th 
September, 1932, by which separate electorates were given 
up. The Pact was accepted by the British Cabinet, who 
modified the Communal Award accordingly. The Mahatma 
gave up his fast on the 26th September. 

The Third R. T. C: — In September, the Government 
declared that it would be necessary to hold further dis- 
cussions in London for settling the plans regarding an 
All-India P^ederation, Responsibility at the Centre and 
Provincial Autonomy, and that a small body of the repre- 
sentatives of the States and British ladia would be invited 
for the purpose. The Third R. T. C. held its sittings from 
the 17th November, 1932, to the 24th December, 1932, and 
was concerned mainly with the question of safeguards, 
special responsibilities, and the consideration of the three 

C.L. 6 4X 



The Indian Constitution Ch. Ill 

Reports of the Committees appointed after the Second 
R. T. C. The Lothian Committee recommended the con- 
ferment of the franchise on about 2^]% of the population. 
The Percy Committee recommended the allocation of the 
revenues between the centre and the federal units and 
conferment of legislative powers therefor. The Davidson 
Committee recommended the remission of cash contributions 
by the States, that each State should be allowed to keep 
for itself duties realised on goods imported through its own 
ports, and compensation to States for the advantages given 
up by them. Sir Samuel Hoare declared: — " I have made 
it quite clear that all questions governed by that general 
term ' paramountcy ' do not come into the federal 
scheme." The Conference enabled the Government to 
formulate their views on the methods for States' entry into 
the federation, on the delimitation of subjects into federal 
and non-federal, the creation of the Sind and the Orissa 
Provinces, the Defence Budget, the Indianisation of the 
Army, the policy regarding the employment of troops out- 
side India, the Co-operation of the federal ministry, the 
Defence Member, and other subjects. Sir Tej Bahadur 
Sapru and Mr. Jayakar submitted an important memorandum 
in which they pointed out that federation should not be 
delayed, that central responsibility should come even if the 
States did not join in large numbers, that the financial 
stability of the federation was beyond the range of doubt, 
that safe-guards should not go so far as to take away from 
the central and provincial Governments the right to subsi- 
dise and protect industries, that the special responsibility 
of the Governor- General and the Governor should not 
conflict with the powers of the Ministers, that there should 
be a declaration of fundamental rights, and that the Council 
of India might be abolished. 



42 



Constitutional Investigations 

The White Paper:— In March 1933, the Government 
pubh'shed the " White Paper" outlining their scheme of 
Constitutional reforms for the Indian Federation of States 
and Provinces. After examining the pros and cons of the 
several problems in the light of the opinions expressed in 
the conferences, memoranda, reports and representations, it 
was framed in the form of a draft statute for the sake of con- 
venience, and forms the basis of the Government of India Act 
of 1935. The constitutional structure was discussed by the 
Parliamentary Committee and passed with modifications. 
The proposals in the "White Paper" fell under three main 
heads commonly referred to as Provincial Autonomy, 
Federation, and Responsibility at the Centre with details 
on matters like the distribution of legislative powers, 
Finance, the Services, Judiciary, Commercial discrimina- 
tion, constituent powers, Reserve Bank, Railway Board, 
India Council, Auditor-General, Advocate-General and 
transitory provisions. ( See Appendix H for opinion of 
Thompson and Garret.) 

The J. P. C— On April 11, 1933, Parliament appointed 
a Joint Select Committee of sixteen members from the 
House of Commons and sixteen Peers to report on the 
"White Paper". The Marquis of Linlithgow was elected 
as the Chairman. The Indian Delegates from British India 
and the Indian States acted as "assessors"; but they were not 
entitled to vote on any issue, n©r to submit any report to 
Parliament. Several witnesses appeared before the Com- 
mittee to represent the various aspects of the constitutional 
problem. Sir Samuel Hoare„the Secretary of State, himself 
offered as a witness and ansx^^ered over 15,750 questions. 
Along with other memoranda, the memorandum of Sir 



43 



The Indian Constitution Ch. Ill 

Malcolm Haile}' on Federal Finance was also placed before 
the J. P. C. An important contention of the British Indian 
witnesses was that the goal of Dominion Status should be 
distinctly enunciated in the Preamble. Reliance was placed 
on the several announcements made on behalf of the. 
Government, and on the Royal Proclamations issued by 
His Majesty from time to time. In September, 1933, 
Lord Willingdon said: — "It was the Government's policy 
to rush with the reforms as hard as they could go, so as to 
help India forward to Dominion Status and absolute equality 
with the other Dominions." 

It was attempted to explain away these declarations 
by stating that they would not bind Parliament as 
Parliament was not a party to these declarations. 
But the point was answered thus by the Rt. Hon'ble Sir 
Tej Bahadur Sapru in the course of an article in the 
"Twentieth Century" of January 1935.;— "It may be a good 
dialectical point in constitutional polemics to say that 
Parliament is not bound by these pledges; but it is very 
poor statesmanship to say so and act upon it" (See Appendix 
H for the opinion of Dr. A. B. Keith). 

The Aga Khan Memorandum:— Among the memo- 
randa submitted to the J. P. C, the Joint Memorandum 
submitted by the British Indian Delegates on the i7lh 
November 1933, was the most representative. The modifi- 
cations to the White Paper which they suggested, constituted 
according to them, the minimum which must be granted 
to India in order to satisfy the legitimate political aspira- 
tions of the people. They pleaded for declaration of 
Dominion Status as the goal, quoting besides other decla- 
rations, the following extract from the Imperial Message 

U 



Constitutional Investigations 

of February 1921. "For years, it may be for generations, 
patriotic and loyal Indians, have dreamed of Swaraj for 
their motherland. Today you have the beginnings of 
Swaraj within my Empire, and widest scope and ample 
opportunity for progress to the liberty which my other 
Dominions enjoy." The Memorandum recommended that 
a definite date might be fixed for the inauguration of the 
Federation in the Constitution Act. They pointed out that 
the White Paper proposals regarding the Indian control 
over Army administration " actually make the constitu- 
tional position worse than at present " and recommended 
( I ) a definite programme of Indianisation with refe- 
rence to a time-limit of twenty or twenty-five years, 
( 2 ) the appointment of a non-official Indian, either an 
elected member or a State representative in the Federal 
Legislature, as Army Counsellor, ( 3 ) the continuance 
of the present policy of the control by the Finance Depait- 
ment of Military expenditure, (4) joint consultations between 
the Ministers and the Counsellors of Reserved Subjects 
( Defence, Foreign Affairs, and Ecclesiastical Department ), 
on all subjects and questions relating to Army policy and 
Army Budget Estimates, { 5 ) Consultation with the 
Federal Legislature before the employment of the Indian 
Army outside India, and ( 6 ) the reduction of military 
expenditure and the constitution of the Statutory Committee 
of Indian Defence. They pleaded for designating the 
proposed Financial Adviser as one to the entire Govern- 
ment. Regarding commercial discrimination, they said: — 
" We must point out that if the clauses are drawn so widely 
as to prevent legitimate discrimination, the Government 
would be driven to State socialism as the only method by 
which the provisions of the Act would be circumvented 



■.Ki 



The Indian Constitution Ch. Ill 

We would, however, very strongly object to any draft 

which makes it impossible for India to discriminate against 
subjects of the Dominions and Colonies which impose 
disabilities on Indian subjects." They stated that "a 
friendly settlement by negotiation is by far the most appro- 
priate and satisfactory method of dealing with the 
complicated matter ( reciprocity with British commer- 
cial community ) We see grave practical objection 

to any constitutional provisions against administrative 
discrimination." They pleaded for direct election to the 
Legislature and for definite provision regulating the procedure 
for the participation of States' members in matters of ex- 
clusively British Indian interest. They opposed the crea- 
tion of Second Chambers in Bengal, Bihar, and U. P. They 
stated,: — "No part of the White Paper proposals has caused 
more dissatisfaction in India than the provision relating 

to the Public Services Very strong objection has been 

taken in India to the scheme by which the Secretary of 
State will continue to recruit on the present basis for the 
two very important services, namely the Indian Civil 
Service and the Indian Police." They recommended that 
the Governors of Provinces should be selected from amongst 
public men in Great Britain and in India. In conclusion 
they stressed on incorporating provision for the automatic 
growth of the constitution without the interposition of any 
enquiry by a statutory commission like the Simon Commission 
and " without involving Parliamentary legislation, except in 
a few strictly limited cases." Lord Willingdon was on leave 
in England from the i6th May to the i6th August 1934. 

The J. P. C. Report :-The Joint Parliamentary Committee 
submitted their report in October 1934, which was published 



Constitutional Investigations 

on November 23, 1934. The material available for the 
Committee was indeed in the nature of a deluge. But the 
recommendationa of the British Indian Delegates were not 
accepted. The report stated that "a recognition of Indian 
aspirations, while it is the necessary preface to any study 
of Indian Constitutional problems, is an insufficient guide to 
their solution. Responsible Government, to which those 
aspirations are mainly directed toda)', is not an automatic 
device which can be manufactured to specification." The 
Committee approved of the abolition of dyarchy in the 
Provinces as provincial autonomy was a natural develop- 
ment, but recommended dyarchy in the centre as constitu- 
tional development should be evolutionary. The idea of 
central responsibility without States was not considered as 
a solution of the problem of Indian federation. They asked 
the Parliament to be resolute and decisive in choosing with- 
out fear or favour the solution for the grave issues of the 
Indian Constitutional problem. 

On the details of the various proposals, they generally 
accepted the scheme of the White Paper, the departures 
from which were only a few, necessitated to make the repoit 
acceptable to the more conservative section in Britain. 
The Committee recommended second chambers for Bombay 
and Madras also, indirect election for the federal Legis- 
lature, the constitution of the Council of State on a more 
permanent basis, the constitution of an Advisory Council for 
the Secretary of State in the place of the India Council which 
was recommended to be abolished, and strong and clear 
conditions against commercial and other forms of discrimi- 
nation and regarding other safeguards, and the continuan-ce 
of the control of the Secretary of State over the key 
services. 

47 



The Indian Constitution Ch. Ill 

The Committee recommended that institutions similar 
to the Council of Agricultural Research should be established 
for Public Health and Education; that equality of chances 
"should be extended as regards the holding of office under 
the federal Government to subjects of Indian States;" that 
strict and impartial principles of recruitment and promotion 
in the public service should be adopted. As regards the 
recruitment of High Court Judges it was suggested by some 
politicians that one-fourth of the number of appointments 
should go to Barristers, one-fourth to the members of the 
Indian Bar, one-fourth to the Provincial Service men, and 
one-fourth to the I. C. S. who should be eligible only if they 
are also Barristers at law, and that Provincial Judicial 
Officers should be eligible only if they were duly enrolled 
at the Bar before their first appointment in the Judiciary.* 

The Bill : — The first reading of the Bill framed by the 
Government on the lines of the White Paper with the modi- 
fication suggested by the J. P. C. Report took place in 
Parliament in December 1934. The Bill received the Royal 
Assent on August 2, 1935. (The Parliament ordered later 
that the Act relating to India might be printed separately 
from the portion relating to Burma ). 

^Regarding the Ecclesiastical Department, Major Atlee and 
his colleagues wrote: — "We think it would be very much better 
to abolish this Department and include religious ministrations 
as an integral part of the Army administration, ...We would go 
further and propose that so long as we have an Army and 
services in India whose spiritual needs are entirely different 
from those of the peoples amongst whom they serve, it would 
be a gracious act on our part if the necessary expenses were 
placed on British instead of on Indian Revenues." 

48 



Chapter IV 

THE NEW CONSTITUTION. 

The Federation of India. 

Introductory: — The Government of India Act, 1935, 
provides for a Federal Constitution for India. The rights 
and powers hitherto belonging to His Majesty and apper- 
taining to the government of India are exercisable by 
His Majesty, except in so for as may otherwise be provided in 
the Act, or otherwise directed by His Majesty. The powers 
of the Crown relating to Indian States in matters concerning 
Paramountcy and those not coming within the P^ederal 
sphere, shall be exercisable by His Majesty's Representa- 
tive in that behalf. The Governor- General of India may 
be appointed as such Representative also, though the office 
of the Governor-General is distinct and separate from that 
of the Representative for the exercise of the functions of 
the Crown in its relations with Indian States, viz. the 
Viceroy, There shall be a Commander-in-Chief of His 
Majesty's Forces in India appointed under the Royal Sign 
Manual. ( Sections. 2-4. )* 

The Federal Units: — The units of the Federation are 
I. The Governors' Provinces. 2. The Indian States acceding 
to the Federation. The Chief Commissioners' Provinces 
shall be included in the Federation so established. The 

* The number of the relevant Sections of the Government 
of India Act, 1935, is given to facilitate reference for interpre- 
tation, and fur further elucidation of the matter summarised. 

C.L.7 49 



The Indian Constitution Ch. IV 



Federation shall be brought into force on the issue of a 
Proclamation by His Majesty. Such Proclamation may 
be issued on an address being presented by each House of 
Parliament, and when the Rulers entitled to choose 52 
members of the Council of State and the aggregate popu- 
lation of v/hose States amounts to at least one-half of the 
total population of Indian States, have acceded to the 
Federation. ( S. 5 ) 

Accession of 5tates:— If His Majesty has signified 
his acceptance of an Instrument of Accession executed 
by the Ruler of a State, such State shall be deemed to 
have acceded to the Federation. The Instrument shall 
declare that he accedes with the intention that all 
Federal authorities, including legislative and judicial, shall 
exercise in relation to the State functions vested in them 
subject to the terms thereof, and for the purpose only of 
the Federation. The Ruler thereby assumes the obligation 
that the relevent provisions of the Act will be given effect 
to in his State so far as they are applicable. The Instru- 
ment shall state the extent to which and the subjects in 
which the Federal Legislature shall enact laws for his 
State; and there may be supplementary Instruments also. 
The Instrument shall not be accepted if the terms thereof 
are inconsistent with the scheme of Federation embodied 
in the Act. After the Federation is established, the request 
of a Ruler for Accession to the Federation shall be trans- 
mitted to His Majesty through the Governor-General. If 
the request is made 20 years after the establishment of the 
Federation, the Governor-General shall not transmit it 
unless an address for transmitting it is presented to him 
by each Chamber of the Federal Legislature. A State 

i50 



The New Constitution 

which has acceded shall be called a "Federated State" and 
all Courts shall take judicial notice of all Instruments of 
Accession and their acceptance. ( S. 6 ) 

The Executive:— The executive authority of the 
Federation shall be exercised on behalf of His Majesty 
by the Governor-General. His annual salary is Rs. 250,800. 
The executive authority of the Federation extends to all 
matters coming within the legislative competence of the 
Federal Legislature, to the raising of military forces exerci- 
sable by His Majesty, to the jurisdiction over tribal areas. 
But executive inteiference in Provincial affairs or in a 
Federated State is permissible only to the extent to which 
it is otherwise provided in the Act and the Instrument of 
Accession. Commissions in the Army shall be granted by 
His Majesty as in the past. The executive authority of a 
Ruler is restricted only to the extent to which the executive 
authority of a Federation becomes exercisable by virtue of a 
Federal Law. ( S. 8 ) 

Council of Ministersr—The Council of Ministers shall 
consist of not more than ten to aid and advise the Governor- 
General in matters except in so far as he is required to act 
in his discretion or exercise his individual judgment under 
the Act in which matters his jurisdiction shall depend on 
his own interpretation. TheG.-G. may preside at the meetings 
of the Council of Ministers. The Ministers shall hold office 
at his pleasure, and he may act according to his discretion 
regarding summoning and dismissal. A Minister shall 
cease to hold office if he is not a member of either Chamber 
of the Federal Legislature for six months; his salary shall 
not be varied during his term of office. 

51 



The Indian Constitution Ch. IV 

Reserved Subjects.— The functions of the Governor- 
General regarding Defence, Ecclesiastical affairs, tribal 
areas and external affairs (except relations between the 
Federation and the Dominions ) shall be exercised in his 
discretion; for this purpose he may appoint counsellors 
not exceeding three to assist him. ( S. ii ) 

Q=Q's. Special Responsibilities: — The G-G has the 

following responsibilities:— Prevention of grave menace to 
the tranquillity of India; safe-guarding financial stability and 
credit of the Federation; safe-guarding of the legitimate 
interests of the minorities; safe-guarding of the right of Public 
servants and their dependants; prevention of the misuse 
of legislative discrimination; prevention of British or 
Burmese action subjecting goods to discriminatory or penal 
treatment; protection of rights of Indian States and of the 
dignity of their Rulers; prevention of the obstacles to the 
discharge of his functions in which he is required by the 
Act to act in his discretion or to exercise his individual 
judgment. In any matter involving his special responsi- 
bility, he shall exercise his individual judgment. ( S. 12) 

Instrument of Instructions:— The Secretary of State 
shall place before Parliament the draft Instrument of Instru- 
ctions to the G.-G. further proceedings on which shall 
not be taken except on an address by both the Houses of 
Parliament to His Majesty praying that the Instrument 
may be issued. The Secretary of State shall have superin- 
tendence and control in matters in which the G.-G. is 
required by the Act to act in his discretion or exercise his 
individual judgment. ( S. 14 ) 

To give advice to the Governor-General in the 
discharge of his special responsibilty for safeguarding the 

52 



The New Constitution 

financial stability of the Federation and to the P'ederal 
Ministry in financial matters if consulted, the G-G shall 
appoint a person to be his financial adviser, who shall 
hold office during the G.-G's pleasure. In selecting the 
adviser, except in making the appointment of the first 
adviser, the G-G shall consult the ministers. For giving 
legal advice and for performing other duties of a legal 
character, if required, the G.-G in the exercise of his indi- 
vidual judgment shall appoint an Advocate-General, who 
must be a person qualified to be appointed a Judge of the 
Federal Court, on such remuneration as the G.-G may think 
fit. He shall have right of audience in all Courts in British 
India, and in a case in which federal interests are concerned, 
in all courts in any Federated State. In consultation with 
the ministers, the G-G may frame rules for the allocation of 
portfolios and conduct of business of the Federal Govern- 
ment. 

Federal Legislature: — The Federal Legislature shall 
consist of His Majesty represented by the G-G. and two 
Chambers, viz. The Council of State, and the Federal 
Assembly. The Council of State shall consist of 156 repre- 
sentatives of British India and not more than 104 represen- 
tatives of Indian States. Out of 156 seats allotted to 
British India, 150 will be filled up by election from the 
Governors' Provinces, Chief Commissioners' Provinces 
and Communities. The Council shall be a permanent body 
not subject to dissolution, but one- third of the members 
shall retire in every third year. The Assembly shall consist 
of 250 members of British India, and not more than 125 
representatives of Indian States. The normal duration of 
the Assembly is five years, the expiration of which period 
shall operate as a dissolution. The Chamber must irieet 

5a 



The Indian Constitution Ch. IV 

at least once in a year. The interval between the last 
meeting of one session and the first meeting of the next 
session must not be more than twelve months. The G-G 
may in his discretion summon and prorogue the Chambers, 
or dissolve the Assembly, and has the power to address 
and send messages to the Chambers with respect to a 
pending bill or otherwise; the matter referred to therein 
shall be taken into consideration by the Chamber to which 
the message is addressed. 

Every minister, counsellor, and the AdvocatcGeneral 
shall have the right to speak in and take part in the pro- 
ceedings of the Chambers ( or committees thereof to which 
they may be nominated ) but shall not be entitled to vote, 
unless otherwise provided for. The Council has the right to 
choose the President and the Deputy President who shall 
vacate their offices on ceasing to be members of the House, 
and may resign the offices, and may be removed by a 
majority voting for the resolution for removal of which 
fourteen days' previous notice is given. In the absence 
of the President, the Deputy President shall preside. 
Ifthe office of Deputy President is vacant, such member 
as the G.-G may appoint, shall act. In the absence of 
the Deputy President from any sitting, such person as 
may be determined by the rules of procedure of the Council 
shall preside. In the absence of such person, any person 
determined by the Council shall act as President. The 
President and Deputy President shall receive the salaries 
fixed by Act of Federal Legislature. In the Assembly the 
title of the person elected to preside is known as the 
Speaker, and provision is made for a Deputy Speaker also. 
The Law relating to the election, remuneration, filling up 

54 



The New Constitution 

of vacancy of the Speaker and Uie Deputy Speaker, is the 
same as the corresponding provision for the President and 
the Deputy President of the Council of State respectively. 
Matters before the Houses shall be decided by a majority of 
votes of the members present and voting. The person 
presiding has only a casting vote. The quorum for a 
meeting is one- sixth of the total number of members. 

Every member shall take the appropriate oath. No 
person shall be a member of both the Chambers. A mem- 
ber's seat shall become vacant by his resignation or by his 
becoming subject to any of the disqualifications for member- 
ship. A person shall be disqualified to be chosen as and 
to be a member if he is an official (other than those holding 
excepted offices), if he is of unsound mind, or is an undis- 
charged insolvent, or is convicted for or found guilty of 
illegal election practices, or has been sentenced to not less 
than two years' imprisonment ( unless five years have 
elapsed since his release), or has failed to duly lodge a 
return of election expenses required by law (unless five 
years have elapsed since the date on which the return was 
due). A person serving a term of transportation or impri- 
sonment for a criminal offence is ineligible. A person hold- 
ing a ministership in the Federation or in a Province or in 
a Federated State, though belonging to the regular service 
in India shall not be deemed to be an official under the 
Crown in India for the purpose of the provisions relating to 
ineligibility noted above. If a member absents himself with- 
out the permission of the Chamber for sixty days exclud- 
ing periods of prorogation, the Chamber may declare his seat 
vacant. Adjournments for more than four consecutive days 
will be excluded from this computation. The penalty for 

55 



The Indian Constitution Ch. IV 

sitting and voting when not qualified is rupees five hundred 
which may be recovered as a debt due to the Federation. 
The members have freedom of speech; no peison shall be 
liable in respect of the publication by or under the authority 
of either Chamber of any report, paper, votes or proceedings. 
Until the privileges of the members are defined by Act of the 
Federal Legislature, the existing privileges of the members 
of the Indian Legislature shall be enjoyed by them. 
Neither the Legislature nor any Committee thereof shall 
have any punitive or disciplinary powers other than power 
to remove or exclude persons infringing the rules or be- 
having in a disorderly manner. Subject to the safe- 
guarding of confidential matter from disclosure, a person 
may be punished in a court for refusing to- give evidence 
or produce a document on notice for production. Members 
shall be entitled to receive allow^ances under the existing 
rates until the Federal Legislature fixes the rates of allow- 
ances and salaries of Members. 

Legislative Procedure: — A bill may originate in 
either Chamber. A pending bill shall not lapse due to 
the prorogation of the chambers, or due to the dissolution of 
the Assembly if the Council is considering the Bill which 
has not been passed by the Assembly. A Bill pending in the 
Assembly lapses on the dissolution of the Assembly. ( S. 30 ) 
if a Bill has not lapsed by the dissolution of the Assembly, 
the Governor-General acting in his discretion by message 
or notification, may call for a joint sitting of both Houses 
if a Bill passed by one Chamber is rejected by the other, or 
is kept by the other Chamber for more than six months, or 
when the chambers disagree as to amendments to the Bill. 
If the Bill relates to finance or matters in which he is 



S6 



The New Constitution 

required to act in his discretion or excercise his individual 
judgment, the Governor-General may call fcr a joint sitting 
to avoid delay in the passing of the Bill, even though six 
months have not elapsed since its being passed by one 
Chamber, or it is not finally rejected, or final disagreement 
regarding amendments has not taken place. If at a joint sitting, 
a Bill, with such amendments as are agreed to, is passed 
by a majority, then it shall be deemed to have been passed 
by the Indian Legislature. A joint session may be held though 
adissolutionof the Assembly has intervened since the Gover- 
nor-General's notification of his intention to summon a joint 
sitting ( S. 31 ). When a bill is passed by the Chambers, the 
Governor-General may declare either that he assents to the 
Bill in His Majesty's name, or that he withholds assent 
therefrom, or that he reserves the Bill for the signification 
of His Majesty's pleasure, or return the Bill with a message 
for reconsideration of specific provisions or considering the 
desirability of introducing amendments. A Bill reserved 
for signification of His Majesty's pleasure shall not become 
an Act unless the Governor-General notifies His Majesty's 
assent within twelve months after it is presented to the 
Governor-General on having been passed by the chambers. 
An act assented to by the Governor-General may be 
disallowed by His Majesty within twelve months of the 
G.-G's assent. ( S. 32 ) 

Financial matters:— The G-G shall cause the Annual 
Financial statement to be laid before the Legislature. It 
shall show distinctly the expenditure required for due 
discharge of his responsibilities and expenditure charged 
on Revenue accounts. The salary and allowances of the G-G's 
Ministers, Counsellors, P^inancial adviser, Advocate-General, 



The Indian Constitution Ch. IV 

Chief Commissioners, Judges of the Federal Court, and 
pensions of High Court Judges, debt charges for which the 
Federation is liable, expenditure in connection with defence, 
ecclesiastical affairs, external affairs ( as come within the 
G-G's. discretion ), administration of tribal and excluded 
areas, and functions of the Crown in its relations-with Indian 
States, sums required for satisfying any decree or award 
of Court or arbitral tribunal shall be charged on the 
Revenues of the Federation ( S. 33 ). These are not 
subject to the vote of the Legislature. But they may 
be discussed in the Legislatures except the items under 
salary and allowances of the Governor-General and expen- 
diture for discharging the functions of the Crown in its 
relation with Indian States. Items not charged on the 
Revenues shown above, shall be submitted in the form of 
demands for grants to the Federal Assembly and then to 
the Council of State vrho may assent to, or refuse assent 
to, or reduce, the amount. If the Assembly has refused 
a demand, the demand shall not be submitted to the 
Council unless the G-G. directs. If the Assembly has re- 
duced the amount, only the reduced amount shall be sub- 
mitted to the Council unless the G -G. otherwise directs. 
If the chambers differ, there may be a joint sitting at the 
instance of the G-G. The decision of the majority at the 
joint meeting shall be deemed to be the decision of the 
two chambers. No demand for grant shall be made except 
on the recommendation of the G-G. ( S. 34 ) The G-G. 
shall authenticate by his signature a schedule showing the 
grants made by the chambers, the sum required for expen- 
diture charged on the revenue, and sums certified by him 
as required for the discharge of his special responsibilities 
which were refused or reduced by the chambers. The 

5? 



The New Constitution 

schedule shall not be open to discussion by the Legislature. 
Supplementary demands may also be made. A Bill for 
imposing or increasing a tax or for borrowing, or declaring 
or increasing the expenditure charged on revenues, shall 
not be introduced in the Council of State. Such a Bill shall 
not be introduced except on the recommendation of the 
G-G. A Bill providing for the imposition of fines and 

penalties, or for demand of license fees is not a Money Bill 
for this purpose, A Bill which involves expenditure from 
the revenues of the Federation shall not be passed unless 
it is recommended for consideration by the Governor-General 
to the Chambers. 

General Procedure; — The G-G. shall, in hi's discretion, 
make rules regulating the procedure in each Chamber after 
consulting the Speaker or the President in relation to the 
matters in which he has to act in his discretion or exercise 
his individual judgment, or for securing the timely com- 
pletion of financial business, or for prohibiting discussion 
or interpellation on matters connected with any Indian 
State other than those for which the Federal Legislature 
can make laws for prohibiting discussion, except 
w^th the G-G's consent, of Foreign relations, conduct of 
Rulers of Indian States and Royal fiimilies, action of the 
G-G. relating to the affairs of a Province or administration 
of excluded and tribal areas other than for Budget Debate. 
Otherwise the chambers can make rules for their own 
procedure. The G-G. after consultation with the President 
and the Speaker may make rules relating to joint sittings 
and communications between the Chambers. The President 
of the Council shall preside at a joint sitting of the two 
chambers. The rules shall provide as to who must occupy 

59 



The Indian Constitution Ch. IV 

the chair in the absence of the President at a joint sitting 
(S. 38). The proceedings in the Federal Legislature shall 
be conducted in the English language. If a member is 
not sufficiently acquainted with the English language, the 
rules may provide for his using another language. No 
discussion shall take place in the Federal Legislature about 
the conduct of any judge of the Federal Court or High 
Court ( including High Courts in Federated States ) in the 
discharge of his duties. The G-G. may, in his discretion, 
certify that the discussion of any Bill would affect the peace 
and tranquillity of India. On such certificate, further 
proceedings regarding the measure will be stopped. 
Courts have no jurisdiction to inquire into the regularity of 
the proceedings in the Legislature. ( S. 41 j 

Legislative Powers of the GoverorGeneral. 

Ordinances: — The Governor- General has power to 
issue ordinances when the Federal Legislature is not in 
session. He shall exercise his individual judgment if 
the measure would, under ordinary circumstances, have 
required his previous sanction before being introduced as 
a Bill. If it is of a nature, which, under ordinary circum- 
stances, he would have reserved for the signification of His 
Majesty's pleasure thereon, then he shall not promulgate 
the ordinance on such a subject without instructions from 
His Majesty. An ordinance has the same effect as a Federal 
Act. But it shall have effect only for six weeks after 
the reassembling of the Legislature. If within that period 
resolutions disapproving of the ordinance are passed by 
both Houses of the Legislature, the ordinance will become 
inoperative after the second of the resolutions is passed. An 
ordinance may be disallowed by His Majesty or withdrawn 

60 



The New Constitution 

by the G-G. An ordinance would be void if legislates 
on a subject beyond the legislative competency of the 
Federal Legislature. ( S. 42) 

The Governor-General may promulgate in his discre- 
tion ordinances for enabling him to discharge his functions 
in matters in which he is, under the Act, to act in his dis- 
cretion or exercise his individual judgment. Ordinances 
of this nature shall be in operation for six months and may 
be extended for another six months. When such extension 
is given, it shall be communicated to the Secretary of State, 
who shall have it laid before Parliament. It shall be 
subject to disallowance by His Majesty, or may be with- 
drawn by the Qi-Q ( S. 43 ) 

Q-Q's Acts: — Instead of issuing an ordinance under 
the last provision noted above, the G-G. may, after explain- 
ing the circumstances in a message to the Legislature, either 
enact a Governor-Generars Act or attach to the message 
a draft Bill. One month after sending such draft, the 
G-G may enact the measure, taking into consideration any 
address presented to him by the Legislature. Such  Acts 
shall be communicated to the Secretary of State to be laid 
before Parliament, and are subject to disallowance by 
His Majesty. These Acts can be enacted only for the 
purpose of enabling him satisfactorily to discharge his 
functions in which he has to act in his discretion, or exercise 
his individual judgment. A Governor-General's Act would 
be void if it legislates any provision which is beyond the 
legislative competency of the Federal Legislature. (S. 44) 

Safeguards Against Failure of Constitutional 

Machinery. 

When the Governor- General is satisfied ' that Govern- 
ment cannot be carried on under the' Act, he may issue 

01 



The Indian Constitution Ch. IV 

a Proclamation declaring his intention to act according to 
his discretion, and assume all, or any of the powers vested 
in any Federal body or authority except those of the 
Federal Court, and issue incidental and consequential 
provisions. The Proclamation may be varied or revoked 
later on, and shall be laid before Parliament by the 
Secretary of State to v^'hom it shall be communicated. 
The Proclamation shall cease to operate after six months. 
If and so often as a resolution approving of the continuance 
of the Proclamation is passed by the Parliament, the 
Proclamation shall continue for a further period of twelve 
months. If, for a continuous period of three years, the 
Government has been carried on under such Proclamation, 
then it shall cease to have effect, and other provisions of 
the Act may be used with suitable amendments made by 
the Parliament for the government of the Federation. But 
this shall not extend the power of Parliament to 
make amendments in the Act without affecting the 
secession of a State. Laws passed by the Governor- 
General under the powers assumed by the Proclamation, 
shall, unless repealed earlier, have effect for two years 
after the date on which the Proclamation ceases to have 

force (S. 45). 

Provincial Governments. 

Provinces :— The following are the Governors' Pro. 
vinces:— Madras, Bombay, Bengal, U. P., the Punjab, Bihar, 
C. P. and Berar, Assam, N. W. F. Province, Orissa, Sind 
and such others as may be created. Burma shall cease to 
be part of India. The sovereignty of Berar is with H. E. H. 
the Nizam. But in contemplation of an agreement with 
H. E. H. the Nizam » Berar and C. P. will continue to be 
governed as one Governor's ProVlncU; except in th'e oath of 

62 



The New Constitution 

allegiance, in all other matters, reference to British India 
shall be deemed to include Berar. 

Governors: — The Governor of a Province is appointed 
by His Majesty by a Commission under the Royal Sign 
Manual. The third schedule prescribes that the salaries 
of the Governors of Madras, Bombay, Bengal, and the 
U. P. shall be Rs. 1,20,000 per annum; of the Punjab and 
Bihar Rs. 1,00,000 per annum; of the C. P. Rs. 72,000 per 
annum; and of Assam, N.W.F.P.,Orissa and Sind Rs. 66,000 
per annum. ( The schedule provides for allowances for 
equipment and travelling, and during terms of office, for 
customs privileges &c., for the G-G. and the Governor ). 

Administration: — The Statutory provisions regarding 
a Council of Ministers and their tenure are the same as those 
of the Federal Council of Ministers. But there are no 
Reserved Subjects in the Provinces. The special respon- 
sibilities of the Governor are the same as those of the Gover- 
nor-General except those of safe-guarding the financial 
stability and credit of the Federal Government, of prevent- 
ing action relating to discriminatory or penal treatment 
(which is a federal subject), and of securing due administra- 
tion of reserved subjects. In addition, the Governor has 
special responsibility for the securing of the execution of 
the orders of the Governor-General issued in his discretion. 
The Governor of Central Provinces and Berar has special re- 
sponsibility for securing that a reasonable share of the reve. 
nues is spent for the benefit of Berar. A Governor of a Pro- 
vince has a special responsibility regarding administration 
of excluded areas, or of functions as Agent for the Gover- 
nor-General. The Governor of Sind has a special responsibi- 
lity regarding tho Llyod Barrage and Canal schemes. The 

6? 



The Indian Constitution Ch. IV 

same provision as in the case of the Governor-General 
regarding the laying of the Instrument of Instructions is made 
in the case of the Governor also. There is similar provision 
for the Advocate-General of the Province, appointed by 
the Governor as in the case of the Advocate-General of 
India. 

Special Provisions: — The Governor shall exercise 
his individual judgment in making, amending, and approving 
by virtue of powers vested in him, regulations and orders 
relating to the police other than those affecting the organir 
sation and discipline of that force. ( S. 56 ) If it appears 
to the Governor that the peace or tranquillity is threatened 
by attempt of conspiracy to overthrow the Government, 
the Governor may direct that his functions shall, to that 
extent, be exercised in his discretion. During such a period, 
when he is acting in his discretion, the Governor may 
authorise an official to speak and take part in the Legislature. 
The Governor may make rules that no records or ( S. 57 ) 
information relating to the sources of information regarding 
conspiracy or preparation shall be disclosed ( i ) by a 
member of the Police to another member of the Police 
except under the directions of the Commissioner or I. G. P., 
■or to any other person except under directions of the 
Governor, ( 2 ) by any other official to any person except 
in accordance with the Governor's directions. The provisions 
relating to conduct of business in the Province are the same 
as those for the Federal Government, and the Governor 
can act in the same manner as the Governor-General. 

The Provincial Legislature:— The Provinces of Madras, 
Bombay, Bengal, United Provinces, Bihar, and Assam shall 

.64 



The New Constitution 

have two Chambers, and the other Provinces one. The 
legislative procedure, constitution of the legislatures, the 
legislative powers of the Governor, and the provisions in the 
case of failure of the constitutional machinery in the 
Province, are similar to those noted above in respect of 
the Federation. No Proclamation under the last of these 
Items can be issued by the Governor without the concurrence 
of the Governor-Gsneral. 

Excluded Areas :— Specified areas may be excluded, 
either partly or wholly, from the operation of the Act or 
part thereof, for which the Governor may make Regulations. 
The Regulations will not have legal force unless assented 
to by the Governor-General. 

Chief Commissioner's Provinces : — These shall be 
administered by the G.-G. through a Chief Commissioner. 
These Provinces are British Baluchistan, Delhi, Ajmer- 
Merwara, Coorg, the Andamans and Nicobar Islands, and 
Pant Piploda. Aden shall cease to be a part of India. 

Legislative Powers. 

Jurisdiction: —The Federal Legislature may make laws 
for British India and Federated States, subject to the 
Act and the Instrument of Accession. The extra- 
territorial operation of any Federal Law, shall not 
be ground for invalidating that Law in so for as it relates 
to British subjects and servants of the Crown in India, to 
British subjects of Indian domicile wherever they may be, 
or to persons on ships or air-craft registered in British India 
or Federated States, or to subjects of Federated States in 
matters included by the Instrument of Accession. This 
includes laws for the regulation and discipline of Naval, 

c. L. 9 65 



The Indian Constitution Ch. IV 

Military, and Air Forces raised in British India, to persons 
attached thereto wherever they may be. ( S. 99 ) 

Legislative Lists .—The Federal Legislature has 
exclusive jurisdiction to make laws relating to matters 
enumerated in the Federal Legislative List ( vide the 
seventh Schedule ). 

The Federal Legislature, and a Provincial Legislature 
also, have power to make laws relating to matters enume- 
rated in the Concurrent Legislative List. 

The Provincial Legislature has exclusive jurisdiction 
to make laws for a Province with respect to any of the 
matters enumerated in the Provincial Legislative List. 

The Federal Legislature has power to make laws with 
respect to matters enumerated in the Provincial Legislative 
List except for a Province or any part thereof. (S. 100) 
The Instrument of Accession will govern the competency of 
the Federal Legislature in legislating for States. (S. loi ) 

Emergency Legislation: — The Federal Legislature, 
may, however, exercise legislative powers with the previous 
sanction of the Governor-General, for Bills even in respect 
of a Province, if the Governor-General has in his discretion, 
declared by Proclamation that a grave emergency exists 
threatening the security of India, whether by War or 
internal disturbance. This power, however, lasts only while 
the emergency lasts, and laws enacted by the Federal 
Legislature in exercise of this power shall cease to h;ve 
effect on expiry of six months after tbe Proclamation has 
ceased to operate. If any provision of a Provincial Law, 
which the Provincial Legislature has power to make, is 



The New Constitution 

repugnant to any provision of a Federal Law, which the 
Federal Legislature has, under this emergency, power to 
make, the Federal Law will prevail whether passed before 
or after the Provincial Law, but the Provincial Law will 
be void only so long as the Federal Law continues to have 
effect. The Proclamation shall be forthwith communicated 
to the Secretary of State who shall lay it before each House 
of Parliament and shall have operation only for six months 
unless approved by Parliament before the expiration of that 
period. ( S. 102 ) 

The Federal Legislature has got power to legislate 
for two or more Provinces if they consent. In such cases, 
the Provincial Legislatures have got power to amend or 
repeal such Act if it does not suit them. 

The Governor-General in his discretion has got resi- 
duary powers for empowering the Federal or Provincial 
Legislature to enact a Law regarding any subject^ rn the 
lists (vide Schedule), or to impose any tax which the 
Federal or Provincial Executive shall extend to the admi- 
nistration of the area under them. 

The Federal Legislature may make the Naval Discip- 
line Act applicable to Indian Naval Forces with suitable 
modifications if necessary. The Naval Discipline Act shall, 
without modification, apply to any part of the Indian 
Navy deputed to be under the Admiralty. 

The Federal Legislature can legislate in matters giving 
effect to International agreements only with the consent of 
the Governor or Ruler of a State as may be, if the Law is 
to affect a Province or a State. (S. 106) 

67 



The Indian Constitution Ch. IV 

In the case of inconsistency between Federal Laws 
and Provincial Laws, the Federal Laws shall prevail. 
(Section 107)- 

Restrictions on Legislative Powers :— The previous } 
sanction of the Governor-General is required for intro- 
ducing Bills in the Federal Legislature and also 
in the Provincial Legislatures on some matters, e. g., 
repealing or amending Acts of Parliament, Governor 
or Governor-General s Act, affecting criminal proceedings 
against European residents etc. (Section loS). The power 
of the Parliament to legislate for British India remains 
unaffected, and the Federal and Provincial Legislatures 
cannot pass Laws affecting the Sovereignty of the Crown, 
Succession to the Crown, Army Act, Air Force Act, Naval \ 
Discipline Act, Prize-Courts, Orders-in-Council, etc., 
(Section no). 

ProviMon regarding Discrimination: — A British subject 
domiciled in the United Kingdom is exempt from the 
operation of F'^ederal or Provincial Law imposing any 
restriction of right of entry into British India or any dis- 
ability regarding travel, residence, holding of property etc. 
by reference to place of birth, race, or descent. But this 
exemption does not prevail wheie a similar disability is 
imposed on Indians by the law of the United Kingdom. 
Quarantine regulations are not discriminatory regulations 
for this purpose, nor are rules governing deportation of 
undesirable persons. The Governor-General or Governor 
may suspend the provision against discriminations in view 
of grave menace to tranquillity, or to comb.it crimes of 
violence. 



68 



i 



The New Constitution 

Discriminations in taxation against Britibh subjects 
domiciled in, or against companies incorporated in, the 
United Kingdom or Burma, or against ships registered in 
British India, or against air-craft, are forbidden. British 
Companies -svill be treated on the same lines as Indian 
companies in the matter of subsides, bounties, &c. These 
are, ho^vever, subject to reciprocity by the huvs of the 
United Kingdom. This exemption may be taken away 
after a Convention between the Government in the United 
Kingdom and the Federal Government meets after the 
establishment of the Federation, and settles on similarity 
of treatments to British subjects domiciled in India, and to 
Companies incorporated there, and after the necessary 
legislation is passed thereon. The previous sanction of the 
Governor-General or Governor is necessary, for Federal or 
Provincial legislation respectively, providing for the laying 
dov/n of professional qualifications for the exercise of pro- 
fessions or for imposing any disability or restriction in 
connection therevrith. Such Bills should be reserved for 
Royal Assent or the Governor-General's consideration as 
the case may be. Such previous sanction shall not be 
given if it affects persons who were already lawfully prac- 
tising a profession, except when public interests require 
any special debarring. Such regulations shall be published 
at least four months before they are expressed to come 
into operation. If within two months after the publication 
thereof, complaint is made that the regulations will operate 
unfairly against any class of persons, and if the Governor- 
General or the Governor, to whom the complaint is made 
considers it to be well-founded, the Governor-General or 
Governor, may, by public notification, disallow thg 
regulations. 

60 



The Indian Constitution Ch. IV 

Medical Qualifications:— A British subject domiciled 
in the United Kingdom or India, who is, or is entitled to 
be, registered in the United Kingdom by virtue of a diploma 
granted in the United Kingdom, shall not be excluded from 
practising medicine, surgery or mid-wiferyby any Federal or 
Provincial law except on the ground that the diploma does 
not furnish sufficient guarantee of his possessing the requi- 
site knowledge for such practice. He shall not be so 
excluded unless the law provides that no proposal for such 
exclusion shall be operative until the expiration of twelve 
months after notice of the G-G. to the University or 
body granting the diploma, and further provides that the pro- 
posal shall be inoperative if the Privy Council, on enquiry, 
decides that the diploma furnishes a sufficient guarantee of 
knowledge. For this purpose, if the University or body grant- 
ing the diploma, or any British subject holding the diploma, 
feels aggrieved by a proposal for exclusion^ such body or 
person may apply to the Privy Council, which, after giving 
an opportunity to the necessary parties in British India and 
the United Kingdom to tender evidence and written 
representations, shall determine whether the diploma is a 
sufficient guarantee for possession of knowledge and skill 
for medical practice. 

The aforesaid provision in the previous paragraph 
is subject to the condition that British subjects domiciled 
in India holding a medical diploma granted after examina- 
tion in British India, shall not be excluded from practice 
and registration in the United Kingdom except on the 
ground that the diploma is not a sufficient guarantee of 
possession of knowledge and skill; the provision is also 
subject to the further condition that there shall be d, 

70 



The New Constitution 

reference to the Privy Council for deciding about the 
sufliciency of the diploma in such cases. 

A medical practitioner entitled to prastice in British 
India by virtue of a diploma granted in the United 
Kingdom, or by virtue of a diploma granted in British India, 
shall not be subjected to disability or restrictions to which 
persons entitled to practise by virtue of diplomas granted 
in the other country are not subject. 

This shall not affect the power of any authority in 
the United Kingdom or in British India to suspend or 
debar a practitioner on the ground of misconduct. 'Diploma' 
includes any certificate, degree, or fellowship granted to 
persons passing examinations. 

administrative relations between the federation, 
Provinces, and States. 

Administration:— The executive authority of every 
Province and Federal State shall be so exercised as to 
secure respect for Federal laws applicable to the Province 
or State. Regard shall be had to the interests of the Province 
or State in the exercise of the authority of the Federation 
( S. 122). The Governor-General shall require the Governors 
to discharge certain functions as his Agents in relation to 
defence, ecclesiastical affairs, external affairs and tribal 
areas. The Governor-General may entrust functions relating 
to Federal matters to Provincial Government or the Ruler 
of a Federated State with their consent. A Federal lav,- 
may confer powers and impose duties on the ofllcers of 
the Provincial Government or the Federated State. The 
Federation shall pay the costs for such functions. If the 

n 



The Indian Constitution Ch. iV 

parties do not agree as to the costs, an arbitrator appointed 
by the Chief Justice may decide the amount of such extra 
costs (S. 124). With respect to the administration of Federal 
laws in States, agreements may be made with the Rulers of 
Federated States, and shall be so made if so provided by 
the Instrument of Accession, in which, provision shall also 
be made for inspection, if necessary, regarding the admini- 
stration of such laws and for the issue of directions by the 
G-G ( S. i:?5 ). Tiie executive authority of a Province 
shall not impede the exercise of Federal executive authority 
which can give necessary directions to a Province among 
others for the carrying into execution of the Federal laws 
relating to matters specified in the Concurrent Legislative 
List. A Bill relating thereto shall not be introduced in the 
Federal Legislature without the previous consent of the 
Governor-General. Directions shall be given for the cons- 
truction and maintenance of communications of military 
importance. The Federation had full power regarding 
construction and maintenance of communications of stra- 
tegic importance. If the Governor-General thinks that 
effect has not been given to his directions, he ma}' issue 
further directions. The Governor-General may also issue 
orders to Governors as to the manner of the exercise of 
executive authority for preventing grave menace to the peace 
or tranquillity of any part of India. The Federation may ask 
the Province to transfer land or to acquire land for the 
Federation on the Federation paying the expenses. 
Disputes as to the terms of transfer may be settled by an 
arbitrator appointed by the Chief Justice of India. The 
Federated State shall exercise its executive authority so as 
not to impede tlie Federal authority exercisable in a 
State. Failure to fulfil such obligations may be met by the 

72 



The New Constitution 

issue of fresh directions by the Governor-General to the 
State on considering the Ruler's representations, if an)'. 
Differences as to the exercisability of a Federal law in a 
State, shiill be settled by the Federal Court (S, 128). 

Broadcasting: — The Federation shall not unreason- 
ably refuse to entrust a Province or Federated State with 
functions regarding the construction and use of transmitters 
and levying fees therefor. But the Province or State 
cannot interfere with Federal control over constructions 
made by the Federation. The Federation cannot impose 
conditions relating to the matter broadcast by a Province 
01 Ruler, except that the Governor-General can interfere 
to prevent grave meance to peace or tranquillity after 
the due administration of Reserved Subjects, tribal areas and 
for the exercise of his special responsibilities. The G.-G. 
shall decide disputes between the Federal Government and 
the Provinces and States regarding broadcasting. 

Interference with Water Supplies : — The Province or 
Ruler of a State may complain to the Governor-General 
as to the interference with water supplies by another 
Province or State. The Governor-General shall appoint a 
Commission who shall report after inquiry. The G.-G. shall 
announce the decision after the consideration of the Report. 
Before such decision is given, the Province or State may 
request the G-G to refer the matter to His Majesty in 
Council for decision. No law shall be passed repugnant 
to the decision of the G-G or His Majesty, as the case may 
be. The decision shall be duly given effect to. Expenses 
may also be decreed, and they may be enforced like an 
ordei of the Federal Court. Similar provisions may apply 
in the case of interference with water supplies of Chief 

C.L. 10 73 



The Inman Constitution Ch. IV 

Commissioner's Provinces. The jurisdiction of Courts in these 
matters is exchidecl. The Ruler of a Federated State may 
cxckide, by the Instrument of A.ccession, the application of 
the provisions regarding interference with water supply in 
relation to his State. (S. 134) 

Inter=Provincial Co=operation: — His Majesty may, on 
representation from the Governor-General, establish an 
Inter-Provincial Council with facilities for the States to 
participate in the work, for settling inter-Provincial dis- 
putes, for investigating subjects of common interest and 
making recommendations for better coordination of policy 
and action in relation thereto. 

Finance, Property, Contracts and Suits. 

Finance: — Distribution of Revenue between the Fede- 
ration and Federal Units:-— 

The Federation shall levy and collect duties in respect 
of succession to property other than agricultural lard, 
Stamp duties mentioned in the Federal Legislative List, 
terminal taxes on goods or passengers carried by Railway 
or air, and taxes on Railway fares and freights. The net 
proceeds except proceeds attributable to Chief Commis- 
sioners' Provinces, shall be assigned and distributed among 
the Provinces and States. (S. 137) Taxes on income shall 
be levied and collected by the Federation; and a prescribed 
part of the net proceeds except those attributable to Chief 
Commissioners' Provinces or in respect of Federal emolu- 
ments, shall not form part of the Federal revenues, but 
shall be assigned and distributed among the Provinces 
and the Federated States. The percentage originally fixed 
shall be continued. The Federal Legislature may levy a 

74 



The New CoNSTiTUTiOxsr • 

a surcharge for being available for the Federal revenues. 
Out of the moneys assigned by the Province, the Federation 
may retain in each year of a prescribed period a certain 
sum prescribed, and in each year of a further prescribed 
period a reduced amount at making a sliding reduction in 
each year that the amount to be retained in the last year of 
the period may be equal to the amount of each such annual 
reduction. The periods shall not be reduced by order in 
Council. The Governor-General may, iPx consultation with 
the Representatives of the Federal, Provincial and State 
interests, extend the duration of the second prescribed 
period to enable the Federation to retain in any year the 
same amount as in the previous year during that 
second period, i. e. without the reduction according 
to the sliding scale. When surcharge is imposed by 
the Federal Legislature, States in v/hich income-tax is 
not levied, shall pay a contribution to the Federation equal 
to the net proceeds which vrould have accrued if the sur- 
charge were leviable in the State. Federal emoluments 
mean emoluments and pensions payable by the Federation 
or the Federal Railway Authority on which income-tax is 
chargeable. (S 138 ) 

Corporation tax shall not be levied by the Federation 
in any Federated State until ten years have elapsed after 
the establishment of Federation. Any Federal law for 
the levy of corporation tax shall make provision enabling 
the Ruler of an}' Federated State to have the option of 
paying the contribution to the Federal revenues in lieu 
of the Corporation tax if he his unwilling to levy the tax 
in the State. The contribution shall be equal to the net 
proceeds which would have accrued if the tax was levied. 

75 



The Indian Constitution Ch. IV 

The Ruler shall requisition information to be supplied 
to the Auditor- General to enable him to determine the 
amount of contribution. The Ruler may appeal to the 
Federal Court if dissatisfied with the amount of contri- 
bution in any financial year. The decision of the Federal 
Court shall be final ie. non-appealable. (S. 139) Salt 
duties, excise duties and export duties shall be levied 
and collected by the Federation, The Federal Act may 
provide for the distribution to Provinces or States to which 
the Act imposing the duty extends, sums equivalent to 
the whole or any part of the net proceeds of that duty on 
principles formulated in that Act. One-half or greater 
proportion, as His Majesty in Council may determine, 
of the net proceeds of export duty on jute or jute products 
shall be assigned to jute-growing Provinces or Federated 
States in proportion to the amounts of jute grown therein. 
(S. 141) The previous sanction of the Governor-General 
is required for Bills affecting taxation in which the Provinces 
are interested, or affecting the provisions and principles of 
distribution between the Provinces and States, or varying the 
meaning of the expression "Agricultural Income". Before 
giving sanction, the G.-G. shall also consider other avenues 
of taxation if any, and the remedies for balancing the 
Federal Budget. (S. 141) His Majesty in Council may 
fix subventions from the Federal Revenues to the Provinces. 
Except in the case of the North-West Frontier Province, 
the amount of subvention shall not be increased by a 
subsequent order unless an address for increase is presented 
by the Federal Lci^islature to the Governor-General for 
submission to His Majesty. The duties or taxes levied in 
any Federated State independently of the provision of the 
Federal Legislature, will not be subject to any of the 

76 



The New Constitution 

aforesaid provisions. Any taxes, cesses or fees levied by any 
Provincial Government, Municipality or any other local 
body under the laws existing on or before the ist January 
1935) will continue to operate until provision to the contrary 
is made by the Federation. Net proceeds means proceeds 
minus the cost of collection as ascertained by the Auditor- 
General of India, and his decision will be final. An Act 
of the Legislature assigning proceeds or contributions, may 
provide for the manner of calculation for financial adjust- 
ments and for the ancillary and incidental matters. 

The Crown and the States :— The Federation shall pay 
the expenses of the Crown in connection with the functions 
of the Crown in its relations with the Indian States includ- 
ing the making of payments of customary allowances 
to members of the family or servants of any former 
Ruler of any territories in India. All cash contribu- 
tions and payments in respect of loans from any 
Indian State shall be received by His Majesty and 
may be placed by His Majesty at the disposal of the 
Federation. Nothing shall derogate from His Majesty's 
rights to remit wholly or in part any contributions or pay- 
ments. His Majesty may agree to remit any contributions 
of a Federated State over a period not exceeding twenty 
years from the date of Accessicn. But the remission shall 
not take effect until the Provinces have begun to receive 
monies from taxes on income. Remission shall be comp- 
lete before the expiration of twenty years from the date 
of Accession of that State or before the expiration of the 
second prescribed period mentioned above in relation to 
distribution of taxes on income, whichever occurs first. 
In the the case of a voluntary cession of a territory befoiQ 

77 



The Indian Constitution Ch. IV 

the passing of the Act by a Federated State, in return for 
specific military guarntees or in return for discharge from 
obh'gations to provide military assistance to the Crown, 
His Majesty may direct the payment of reasonable sums 
after taking into account the value of any privilege or 
immunity to that State, subject to its waiving the said 
guarantees. No contribution shall be remitted save in 
so for as it exceeds the value of any privileges or immunity 
enjoyed by the State. If the liability for contributions has 
been discharged by payment of capital sums, they may 
be returned in instalments or otherwise, as His Majesty may 
direct. Such repayments shall be deemed to be remissions. 
Cash contribution includes periodical contributions in 
acknowledgment of the Sezerainty of His Majesty in 
return for aid or protection, contributions in commuta- 
tion of an obligation to provide military assistance, or in 
return for special military forces or police, or expenses 
of an agent, periodical contributions on restoration of 
a State or a territory, and periodical contributions formerly 
payable to another State but now payable to His I\Iajesty 
by right of conquest, assignment or lapse. Privilege or 
immunity refers to rights of levying sea customs, pro- 
duction and sale of untaxed salt, sums receivable on 
account of a surrender of a right of customs duties, and of 
production of salt and other commodities or in lieu of 
grants of free salt; it further includes the annual value to 
the Ruler of any privilege or territory granted in respect of 
any such right. Privileges in respect of free service stamps, 
free carriage of State mails, right to issue currency notes, right 
to get freedom from customs duties on goods imported by 
sea and transported in bond to the State, also come under 
this category. For the acceptance by His Majesty of 

78 



The New Constittttton 

the Instrument of Accession of any State, all particulars 
as regards privileges or immunity will have to be given in 
the Instrument (Vide Section 147 ). Section 148 provides 
that any payments made under Section 147 and payments 
made heretofore to any State by the G-G. in council or 
the Local Government shall be charged on the revenues of 
the Federation or on the revenues of the corresponding 
Province as the case may be. The value of privileges and 
immunities will be set off against the share of taxes etc., 
assigned to Federated States. 

Miscellaneous Financial Provisions. 

No burden shall be imposed on the revenue of the 
Federation or the Provinces except for the purposes of India. 
The Federation or a Province may make grants for a pur- 
pose though it is not within the Legislative competence of 
the Federal or Provincial Legislature. The Governor- 
General or the Governor exercising his individual judgment 
may make rules for the revenues of the Federation or of 
the Province respectively being paid to the public account, 
and for custody and withdrawals thereof. The Governor- 
General shall exercise his discretion in the appointment, 
removal, approval, and fixing of salaries and tenure of 
office of the Governor, Deputy Governor and officiating 
Governor of the Reserve Bank, and while acting in super- 
session of the Central Board of the Bank and in the 
liquidation of the Bank. The Governor-General will exer- 
cise his individual judgment in nominating and removing 
the Directors of the Reserve Bank. The previous sanction 
of the Governor-General acting in his discretion will be 
necessary for Bills affecting the constitution or functions of 
the Bank or its powers of coinage and currency. Property 

79 



The Indian Constitution Ch, IV 

vested in His Majesty for the purpose of the Federation 
can be exempt from all taxes imposed by a State or a 
Province. But if the said property was subject to any tax 
before the Act, it will continue to be so until a contrary 
measure is passed. The Government of a Province and the 
Ruler of a Federated State shall be free from Federal 
taxation with respect to lands and buildings situated in 
British India or income accruing or received in British 
India. The trade or business and incomes therefrom of 
any Province or a Federated State outside their territorial 
jurisdiction, shall not be exempt from Federal taxation nor 
the personal property of any Ruler including personal 
income and lands and buildings. The right of the Ruler 
of any State with respect to exemption from taxation in the 
matter of Government securities shall be preserved if the 
right existed before or at the commencement of this Act. 
The expenses of any Court or Commission, or any pension 
payable for Indian services under the Crown, shall be 
adjusted after a consideration of the proportion of the services 
rendered to the Province or the Federation; and the con- 
tribution of each, shall be charged on the respective re- 
venues. In default of agreement regarding the contri- 
bution, an arbitrator appointed by the Chief Justice of India 
shall decide the issue. The Secretary of State shall get 
money from time to time from the Federation and the 
Provinces to pay off liis liabilities and pensions payable in 
the United Kingdom on behalf of the Federation or the 
Provinces. His Majesty in Councial may make pro^ 
vision for regulating the relations of the monetary systems 
of Burroa and India, and for granting relief from any 
Federal tax on income; in respect of income taxed or tax- 
able in Burma, Provision may be made by His Majesty 

SO 



The New Constitution 

by Order In Council regarding customs duties on Indo-Burma 
trade and for safe-guarding the economic interests of Burma 
during the period immediately after separation from India. 

Borrowing: — The powers of borrowing vested in the 
Secretary of State in Council shall cease from the intro- 
duction of Provincial Autonomy. But this does not affect 
the powers, under the Act, of the Secretary of State for 
raising Sterling Loans, Both the Federation and the Provinces 
have borrowing powers within limits fixed by the Federal 
Legislature and the Provincial Legislature respectively. 
The Federation may make loans to the Provinces and may 
give guarantee for Piovincial Loans. A Province may not 
borrow outside India without the consent of the Federation. 
A Province may not borrow without such consent if there 
is still any outstandings in the loan due to the Federation, if 
any, or under any guarantee given on its behalf by the 
Federation. Consent, guarantee and loan shall not be 
unreasonably refused or withheld by the Federation. The 
G-G's decision in disputes relating thereto shall be final. 
Within the limits fixed by the Act, the Federation may give 
loans to, or guarantee loans raised by, any Federated State. 
Provision is made for the application of the Colonial Stock 
Acts 1S77-1900 to the Stocks issued by the Federation. 

Audit And Accounts:— There shall be an Auditor- 
General of India appointed by His IMajesty. He shall be 
removed from office on the same grounds and in lika 
manner as a Federal Court Judge ( See later under the 
heading "The Judicature"). He is ineligible for any 
further office under the Crown in India. He shall act 
according to the rules of the order in Council and the 
modifications thereof made by the Legislature. A Bill 

C.L.ll 81 



Thf Inman Constitution Ch. IV 

regarding the same sliall not be introduced without the 
previous sanction of the Governor-General. Provision is 
made for the appointment of Proyincial Auditors-General 
if after two years from the introduction of Provincial 
Autononi}', the Provincial Legislature passes an Act for 
such appointment. A Provincial Auditor-General is eligible 
for appointment as Auditor-General of India, but not for 
any other office. Power is given to the Auditor-General 
of India to give directions as to the keeping of Federal and 
Provincial accounts which shall be duly given effect to. The 
Audit Reports shall be laid before the respective Legislature. 

There shall be an Auditor ofthe Indian Home Accounts 
appointed by the Governor-General. His removal shall be 
in like manner and on like grounds as a Judge of the 
Federal Court. He shall exercise powers in relation to 
transactions in the United Kingdom affecting the revenues 
of the Federation, of the Federal Railway Authority or 
of a Province. His Report shall be included in the Report 
ofthe Auditor-General of India or ofthe Provincial Auditor- 
General according as it affects the Federation or the 
Province. He shall be subject to the general superintendence 
of the Auditor-General of India. Audit of accounts relating 
to the discharge of the functions ofthe Crown in relation 
to Indian States, shall be done by the Auditor-General of 
India or by the Auditor of Indian Home Accounts under 
the former's general superintendence in respect of such 
transactions in the United Kingdom. The Auditor-General 
shall submit to the Secretary of State an annual report of 

such accounts of transactions' relating thereto in India and 
in England. 

Property, Contracts, Liabilities and Suits — Property 
situated in a Province and hitherto used for Provincial 



82 



The New Constitution 

purposes, vest in His Majesty for the purposes of the 
Government of that Province. If used for purposes which 
thereafter will be Federal, or for the exercise of functions 
in relation to State purposes, or intended to be so used, 
the property will vest in the Crown for the Federation or for 
the State relations respectively. The property outside India 
vests in the Crown for the Federation. If the property is 
used for the Department of the Secretary of State in Council, 
then it vests in His Majesty's Government and is to be 
under the management of the Commissioner for Works; 
and the sale of such lands shall take place only with the 
consent of the Governor-General. All other property shall 
vest in His Majesty for the Federation, or for the exercise 
of functions in relation to States, or for the Government 
of a Province according to the respective purposes for 
which the property was held before the introduction of 
Provincial Autonomy. Property accruing by escheat or 
lapse or as bona vacantia in a Province shall vest in His 
Majesty for a Province. Otherwise, it will vest in His 
Majesty for the Federation. Property in the possession of a 
Government will vest in the Federation or the Province 
according to the use to which it was put at the date when 
the right accrued. The authority of the Federation in the 
Province shall extend to the sale, grant, disposition, acquisi- 
tion, and purchase of property and the making of contracts. 
But the official residence of the Governor-General or the 
Governor cannot be sold or changed except with the 
concurrence of the Governor-General or the Governor respec- 
tively. Property acquired for the Federation, or for a 
Province, or for the exercise of functions in relation to 
States, shall vest in His Majesty for those purposes. Neither 
the G-G nor the Governor, nor the Secretary of State, nor 

83 



The Indian Constitution Ch. IV 

any officer executing or making contracts on behalf of 
Government shall thereby incur any personal liability. 

Suits: — The Federation may sue or be sued by the 
name of the Federation of India, and the Provincial Govern- 
ment by the name of the Province. Where the Federation, 
the Federal Railway Authority or a Province sue or are 
sued in the United Kingdom, service of proceedings may 
be effected on the High Commissioner or any other repre- 
sentative of the Federation, Railway Authority or Province. 
Existing contracts of the Secretary of State made before 
the establishment of Provincial Autonomy shall devolve 
on a Province if made for the Province, and in other cases 
on the Federation. Liabilities in respect of loans, guarantees 
and other financial obligations of the Secretary of State 
in Council, existing at the time of introduction of Provincial 
Autonomy and secured on the revenues of India, shall be 
liabilities of the Federation secured on the revenues of the 
Federation and of ail the Provinces; enactments relating 
thereto shall continue to have effect. No deduction in 
respect of taxation under any existing or future Indian 
or Provincial Law shall be made from any payment of 
principal or interest in respect of such securities where 
interest is payable in sterling. Liabilities of Local Govern- 
ment secured on Provincial revenues shall continue to be 
the liabilities of the Province with that security. Legal 
proceedings which might have been brought against the 
Secretary of State in Council, but for this Act, arising 
before the establishment of Provincial Autonomy, or under 
any statute or contract passed or made before that date, 
shall be brought against the Federation or Province accord- 
ing to the subject-matter of the suit. Costs, damages etc. 

84 



The New Constitution 

in that connection shall be paid out of the Federal or Pro- 
vincial revenues as the case may be. At the option of the 
person by whom the proceedings are brought, they may 
be filed against the Secretary of State. Damages and costs 
in such cases may be paid out of such revenues as the 
Secretary of State may direct. The Secretary of State may 
make a similar direction that costs etc, shall be paid out 
of the revenues of the Federation or the Province in suits 
brought against him in the United Kingdom arising out of 
contracts made in respect of Provincial affairs after the 
introduction of Provincial Autonomy. There is no liability 
on the British Exchequer. In legal proceedings pending in 
India or the United Kingdom against the Secretary of State 
in Council- on the date of the introduction of Provincial 
Autonomy, the Secretary of State shall be substituted for 
the Secretary of State in Council. Contracts in connection 
with functions of the Crown in its relation with Indian 
States before the introduction of Provincial Autonomy, 
shall, after that date, have effect as if they have been made 
on behalf of His Majesty; and proceedings arising therefrom 
shall be brought by or against the Secretary of State. In 
proceedings pending on that date by or against the Secre- 
tary of State in -Council, whether in the Unitd Kingdom 
or in India, the Secretary of State shall be substituted for 
the Secretary of State in Council. Contracts made in 
connection with the said functions of the Crown in relation 
to States, shall be enforceable by or against the Secretary 
of State. Costs and damages to be paid, shall be deemed 
to be sums required for the discharge of the functions of 
the Crown on that behalf. The sums received by the 
Secretary of State by virtue of such proceedings, shall be 
paid or credited to the Federation. 

85 



Chapter V 

THE NEW CONSTITUTION (Contd.) 

The Federal Railway Authority. 

Functions:— The Executive Authority of the Federa- 
tion in respect of regulation, construction, maintenance and 
operation of Railways, shall be exercised by a Federal 
Railway Authority. Subject to the provisions of any Federal, 
Provincial or existing Indian Law or Law of any Federated 
State, the Authority shall make arrangements for all under- 
takings by the Railways. The Federal Government may 
order its officers to hold inquiries into causes of Railway 
accidents, and perform other function? for the securing of 
the safety of the public using the Railways. 

Composition:— Not less than three-seventh of the 
members of the Authority shall be appointed by the Gover- 
nor-General in his discretion, which shall also be exercised 
by him in appointing a miember of the Authority as the 
President. The qualifications and conditions of service of 
the members ot the Authority are prescribed in the VIII 
Schedule of the Act ( Vide extracts below ). 

Directions and Principles : — The Authority shall act 
on business principles having regard to the interests of agri- 
culture, industry, commerce, finance and the general public. 
They shall be guided by the instructions of the Federal 
Government on questions of policy. The Authority shall 
exercise its functions in their discretion as if they were 

86 



Thf New Consttttition (Contd.) 

special responsibilities^ or exercise individual judgment in 
the very same way as the Governor-General would act in 
those matters where special responsibility or discretion or 
individual judgment is vested in him. The Governor- 
General's directions to the Authority in matters which 
involve his special responsibility or require his discretion 
or exercise of individual judgment, shall be given effect to 
by the Authority. The Governor-General may make rules 
for the convenient conduct of business between the 'Railway 
Authority and the Federal Government. The Chief Execu- 
tive Officer of the Authority shall transmit, when required, 
information to the Federal Government on Railway business 
and shall bring to the notice of the Governor-General 
Railway matters involving his special responsibility. Land 
may be compulsorily acquired by the Federal Government 
for the Authority. The Authority shall not acquire or 
dispose off land except under regulations made by the 
Federal Government. Contracts made by the Authority 
shall not be enforceable by or against the Federation. 
The Authority may sue and be sued as a Company. The 
Authority may make working agreements with Indian 
States. 

Finauce:^— The Authority shall maintain and control 
a Fund known as the Railway Fund, out of which expendi- 
ture may be incurred for the discharge of their functions, 
e. g. for working expenses, payments under contracts, 
payments of pensions and contributions, repaying to the 
Federation pension contributions, provision for maintenance, 
improvements and depreciation, payment to the Federation 
of interest due &c. Surpluses shall be apportioned between 
the Federation and the Authority according to any settled 

87 



The Indian Constitution Ch. V 

scheme. Provision from the Federation for the Authority 
shall be shown in the estimate of expenditure laid before 
the Legislature. For the obligations of the Railway 
Authority to the Federation, the Authority shall pay 
interest to the Federation and make payments in reduction 
of the principal. Tlie Authority shall repay to the Federa- 
tion sums defrayed by the Federation on account of 
damages caused &c. in proceedings against the Federation 
or the Secretary of State in respect of Indian Railways. 
The Authority shall pay to Provinces or Indian States 
expenses incurred by them for the Railway Police. The 
Authority shall invest moneys in the Railway Fund or any 
Provident Fund. Except for expenditure chargeable 
against that particular Fund, the Authority cannot demand 
the transfer to them, for investment, of the Railway 
Depreciation Fund, Reserve Fund or Provident Fund held 
by the Governor-General in Council. The annual accounts 
of the Authority shall be audited by the Auditor-General of 
India, and an Annual Report shall be published by the 
Authority. 

Railway Rates Committee : — The Governor-General 
may appoint a Railway Rates Committee to give advice to 
the Authority regarding disputes as to rates and traffic 
facilities. Except on the recommendation of the Governor- 
General, bills and amendments for regulating rates and 
fares in Railways shall not be introduced in the Federal 
Legislature. The Railway Authority and the Federated 
States should afibrd mutual traffic facilities and avoid undue 
discrimination by undue preference or uneconomic compe- 
tition. Complaints in such matters may be made to the 
[^Railway Tribunal by either party. The Governor-Gengral 

88 



The New Constitution (Contcl.) 

in his discretion shall make rules for the construction and 
reconstruction of Railways. Except where the Governor- 
General certifies that for reasons connected with Defence, 
effect should or should not be given to a proposal, 
all other proposals to which objection is taken shall be 
left to the decision of the Railway Tribunal. 

Railway Tribunal: — The Railway Tribunal shall consist 
of a President and two others to be selected by the Governor- 
General from a panel of eight persons appointed by him in 
his discretion, being persons with Railway administrative 
or business experience. The President shall be a Federal 
Court Judge appointed by the Governor-General in consulta- 
tion with the Chief Justice. He shall hold office for five 
years and shall be eligible for reappointment for a further 
period up to five years. The President shall cease to be 
such when he ceases to be a Federal Judge. The 
Authority and the Federated States shall give effect to the 
orders of the Tribunal. An appeal lies to the Federal Court 
on questions of Law, but there is no further appeal from the 
Federal Court. The Tribunal or the Federal Court, may, 
on application, review its own previous order in view of 
an alteration in circumstances. The President shall make 
the necessary rules for proceedings before the Tribunal. 
No other Court has jurisdiction in matters which are 
cognisable by the Tribunal (S. 196). Provision is made for 
the right of Railway Companies, to have recourse to 
arbitration in respect of disputes if their contracts so 
provide. His Majesty's Representative may entrust to 
the Authority any functions relating to the Railways 
in un-Federated States. The powers of the Secretary of 
State with regard to the appointment of Directors and 

g-L. 12 89 



The Indian Constittttion Ch. V 

Deputy Directors for Indian Railway Companies, shall be 
exercised by the Governor-General in his discretion in 
consultation with the Authority. 

The Judicature. 

The Federal Court 

Constitution:— The Federal Court shall consist of a Chief 
Justice of India and not more than six Puisne Judges, which 
number shall not be exceeded unless an address is presented 
by the Federal Legislature for an increase. A Judge is 
appointed by His Majesty by Warrant under the Royal 
Sign Manual. They can serve up to the age of sixty-five. 
They may be removed on the Report of the Privy Council 
on the ground of misbehaviour or bodily or mental infirmity. 
A Federal Judge should have been a High Court Judge 
in British India or a Federated State for five years, or a 
Barrister, Scottish Advocate or High Court Pleader for 
ten years. The Chief Justice must be a person who w^as, 
when first appointed to Judicial office, a Barrister, Advocate, 
or Pleader, and had fifteen years' standing at the Bar; 
period spent in holding any Judicial Office will be included 
in calculating the period of standing for this purpose. (S. 200) 
Temporary appointments as Chief Justice may be made by 
the Governor-General from among the Federal Judges till 
the person appointed by His Majesty takes charge. The 
Court shall sit at Delhi and such other places appointed 
by the Chief Justice with the approval of the Governor- 
General. 

Jurisdiction: — The Court has original jurisdiction 
on questions of legal right between the Federation, the 

9Q 



The New Constitution (Contd.) 

Provinces and any of the Federated States. In the case of 
a State, the dispute must concern the interpretation of the 
Act or Order in Council or the Legislative or Executive 
Authority of the Federation according to the Instrument of 
Accession^ or the dispute must arise on the adminis- 
tration in a State of a Law or under an agreement 
between a State and the Federation giving jurisdiction to 
the Court in any said dispute. If the jurisdiction is expressly 
excluded, the Court cannot entertain the dispute. On a 
certificate by the High Court that the dispute involves a 
substantial question of Law, the Federal Court has appe- 
llate jurisdiction from High Courts in British India. The 
Federal Legislature can enlarge the Appellate jurisdiction 
of the Court ( Sections 204 to 206 ). On practically ana- 
logous grounds as the Appellate jurisdiction from 
decisions of British Indian High Courts, the Federal Court 
has appellate jurisdiction from High Courts in ^Federated 
States. An appeal lies to the King in .Council from the 
decisions of the Federal Court in its original jurisdiction 
described above. In other matters, leave of the Court or 
of the King in Council is required for appeals to His 
Majesty in Council. ( Ss. 207 and 208 ) Provision is made 
for the enforcement of the Decrees and orders of the Federal 
Court throughout India and of orders as to discovery and 
protection of documents and investigation and punishment 
of any Court etc. In dealing with the High Courts in a 
Federated State, the form of communication for these 
matters shall be letters of request to the Ruler of the State 
who shall cause such communication as may be necessary 
to be made to the State High Court. The Law declared by 
the Federal Court and the Privy Council is to be binding 
on all Courts. ( Sections 210 to 212 ) On important questions 

91 



The Indian Constitution Ch. V 

of Law, the Governor-General has power to consult the 
P'ederal Court. The Federal Court, may, with the approval 
of the Governor-General acting in his discretion, make rules 
regarding legal practitioners, Court procedure, time of appeal, 
cause, fees, summary disposal of frivolous, vexatious and 
dilatory proceedings, and for constituting separate Division 
Benches. The Chief Justice has authority to constitute 
the Benches. Expenses of a Federal Court shall be a 
charge on the Federal Revenues. His Majesty, may, after 
communication with the Ruler of a Federated State, declare 
the High Court in that State to be a High Court for the 
aforesaid purposes. 

Courts in British India 

Constitution: — The existing High Courts and the 
Chief Courts and the Judicial Commissioner's Courts in N.W. 
Province and Sind, and any other Courts declared to be 
such or constituted hereafter, shall be High Courts for the 
purpose of this Act. The age-limit for High Court Judges 
is sixty years. The number of Judges shall be such as may 
be determined from time to time. The conditions of 
appointment and of continuance of service are the same 
as those for the Federal Judges. Besides the qualifications 
of standing at the Bar fixed for Federal Judges, a person 
shall also be eligible if he is a member of the I. C. S. for 
ten years, of which three years were spent as a District 
Judge, or if a person has served for five years in a Judicial 
office not inferior to that of a Subordinate Judge or a Small 
Cause Courts Judge. The Chief Justice must have been 
a Barrister or Scottish Advocate or High Court Pleader 
when first appointed to Judicial office or must have served 
for at least three years as High Court Judge. ( Sections 219 

92 



The New Constitution (Contd.) 

and 220 ). Temporary appointments of Acting Chief Justice 
and Puisne Judges may be made by the Governor-General 
in his discretion. The Acting Chief Justice must be selected 
from one of the Judges of the Court. The Governor- 
General may appoint Additional Judges for any term not 
exceeding two years. 

Jurisdiction: — The existing jurisdiction of the High 
Court shall continue subject to the Act and Order in Council. 
The High Court shall have administrative functions and 
superentendence in administrative matters over subordinate 
Courts including calling for returns, settling tables of fees, 
issuing rules of practice and prescribing forms of accounts. 
The High Court may transfer to itself from the subordinate 
courts cases involving questions of validity of any Federal 
Act Of Provincial Act on the application of the Federal 
Advocate-General or Provincial Advocate-General respe- 
ctively. Until otherwise provided, the High Court has no 
other jurisdiction in revenue matters. The expenses of the 
High Court shall be a charge on the Provincial revenues. 
His Majesty, may, if the Legislature of a Province present 
an Address in that behalf to the Governor of a Province for 
submission to His Majesty, constitute a new High Court or 
reconstitute or amalgamate existing High Courts for the 
Province. On agreement between the Governments con- 
cerned. His Majesty in Council may give a High Court 
extra-territorial jurisdiction to any area in British India 
outside the Province. ( S. 230 ) 

The Services of the Crown 

Defence Services: — The pay and allowances of the 
Commander-in-Chief are regulated by His Majesty in 

93 



The Indian Constitution Ch. V 

Council. His Majesty in Councial may require that appo- 
intments to offices connected with Defence shall be made 
in any specified manner. Commissions may be granted by 
His Majesty to persons lawfully enlisted or enrolled in the 
Indian Naval, Military or Air Force. The Secretary of 
State has got control with respect to conditions of Service 
and possesses the the power of hearing appeals as before 
the Constitution Act. The sons of persons who have served 
in India in the Military or Civil Service of the Crown have 
the same right to India Cadetships as heretofore. 

Civil Services:— -The tenure of office of persons em- 
ployed in India in civil posts is during His Majesty's 
pleasure. Persons cannot be dismissed by any authority 
subordinate to that by which they were appointed. Except 
for dismissal or reduction due to coviction on a criminal 
charge, no person shall be dismissed or reduced in rank 
without being heard unless the competent authority records 
in writing the reasons for denying a hearing to the Officer. 
Appointments to the Federal Services shall be made by the 
Governor -General and to the Provincial Services by the 
Governor according to the conditions of service prescribed 
and to rules regarding right of appeal on punishment or 
censure, or on termination of appointment, or on interpre- 
tation of conditions, except when the order is passed by 
the Governor-General or the Governor. Similar rules shall 
apply to Railways, Customs, Post and Telegraph Services 
and officials of Courts. There maybe special provisions 
as to the conditions of service of the Police Forces. The 
association of the Anglo-Indian community v>ith the Rail- 
way Services and the Governor-General's instructions for 
securing to each community adequate representation therein, 

94 



The New Constitution (Contd.) 

shall weigh with the Federal Authority in making 
appointments. The Associntion oftha Anglo-Indian commu- 
nity with the Customs, Postal and Telegraph Services shall 
be considered in framing rules for the appointments to those 
services. The rules for the Staff attached to the Federal Court 
shall be made by the Chief Justice of India with the 
approval of the Governor-General, while, for the Staff of a 
F«de«*ivHigh Court, the Chief Justice of the High Court 
may make rules with the approval of the Governor. 

Recruitment by Secretary of State:— The Secretary of 
State has the power to recruit for the Indian Civil Service, 
the Indian Police Service and the Indian Medical Service 
(Civil). He may make recruitments for the purpose of 
securing suitable persons to fill civil posts for the functions 
which the Governor-General has to discharge in the exer- 
cise of his discretion. A statement of the appointments 
made by him shall be laid by the Secretary of State before 
Parliament every year. The Secretary of State, may, 
for securing efficiency, recruit persons for civil posts cchi- 
cerned with Irrigation. Reserved posts shall not be kept 
vacant for more than three months without the previous 
sanction of the Secretary of State. Postings shall be made 
by the Governor-General or the Governor, Rules regarding 
pay, leave, pension, etc. shall be made by the Secretary of 
State and orders regarding officers holding Reserved Posts 
shall be made by the Governor-General or the Governor 
exercising his individual judgment, who are also bound to 
hear appeals from such officers regarding any order affect- 
ing their conditions of Service. Only the Governor-General 
or the Governor has the right to pass an order of punishment 
or censure or any adverse order on any memorial; and 

•95 



The Indian Constitution Ch. V 

against such order, there is an appeal to the Secretary of 
State. Compensations shall be paid by the Secretary of 
State to any Officer who is adversely affected by the Act. 
Similar provisions shall apply to persons appointed by the 
Secretary of State in Council before the commencement of 
Part 111 of the Act and to the Staff of the High Commis- 
sioner and the Auditor of Indian Home Accounts. 
Persons appointed before the commencement of Part HI 
of the Act to the Staff of the High Commissioner, or of the 
Auditor, shall continue to be such and retain the conditions 
of service as before. 

Judicial Officers:— The appointment of District Judges 
shall be made by the Governor in consultation with the 
High Court. For direct recruitment as a District Judge, 
a person must have at least five years' standing as a 
Barrister or Advocate of Scotland, or Pleader. District 
Judge includes Joint, Additional or Assistant District Judge, 
Small Cause Courts Judge, Chief Presidencj^ Magistrate, 
Sessions Judge, Additional or Assistant Sessions Judge. 
For appointment to the Subordinate Judicial Service, a list 
of eligible candidates, shall, as a result of an examination, 
be submitted by the Public Services Commission to the 
Governor, who shall make the selection out of the list 
having regard to the claims of the different communities 
in the Province. The High Court has power regarding 
posting, promotion and leave of members of the Subordinate 
Judicial Service who have, however, a right of appeal 
to the Governor. 

Miscellaneous: — Special provision is also made as to the 

Officers of the Political Department and for the protection 

of existing Officers of Central Service Class 1, Central Service 



The New Constitution (Contd) 

Class II, Railway Service Class I, Railway Service Class II, 
and to Officers serving in or before 1924 in the Superior 
Services. The powers of the Secretary of State shall not 
be exercised by him regarding the Services except with 
the concurrence of his Advisers. The Secretary of State, 
the Governor-General or the Governor acting in his discre- 
tion, may declare the eligibility for office of certain persons 
who are not British Subjects eg. the Ruler or subject of a 
Federated State, or native of a Tribal area adjacent to India 
(S. 262). The Provinces and the Federation may join 
together for creating joint services. 

Public Service Commissions. 

Composition:— There shall be a Public Service Commis- 
sion for the Federation and one for each of the Provinces. 
The Provinces may agree to have a Commission for a group 
of Provinces or for more than one Province. One-half of the 
members shall be persons who have held ofiice for ten years 
under the Crown. The Chairman of the Federal Commission 
shall be appointed by the Governor-General and that of the 
Province by the Governor, who shall also make rules 
regarding the number of members, staft", etc. The Chairman 
of a Provincial Commission may become the Chairman of 
the Federal Commission or Chairman of any other 
Commission. The Chairman of the Federal Commission 
shall be ineligible for further appointment. The members 
of the Federal and Provincial Commissions are ineligible 
for any other posts without the consent of the Governor- 
General and Governor respectively. ( S. 265 ) 

Functions : — The Commissions shall hold examina- 
tions for recruitment to the Services and may be consulted 

c. L. 13 97 



The Indian Constitution Ch. V 

on principles and methods of recruitment and promotion, 
disciplinary matters, claims, pensions, etc. The functions 
of the Public Service Commissions may be extended by the 
Legislature, but not to include anything affecting the 
Reserved Services except with the consent of the Secretary 
of State. Previous sanction of the Governor-General or the 
Governor is necessary for introducing Bills relating 
thereto. 

General : — Provision is made for indemnity for past 
acts of Public Servants, for protection of Public Servants 
againnt prosecutions and suits, for the defraying of costs of 
litigation incurred by Public Servants, out of the revenues 
if deemed fit, (Sections 270 and 271). Provision is also 
made for payment of pensions and for exemption of those 
pensions from taxation in India ami for the several Family 
Pension Funds. Persons are not to be disqualified by sex 
for holding ofiices unless so specified by general or special 
order of the Secretary of State, or the Governor- General 
or the Governor, whoever is the competent authority for 
making the particular appointment. 

The Secretary of State, his Advisers and 
HIS Department. 

AdvLsers:r-The old India Council is replaced by a 
body of Advisers to the Secretary of State, not being less 
than three and not more than six in number. One-half of 
these should have served in India for ten years under the 
Crown and have not last ceased to serve in India more than 
two years before their appointment as Advisers. The 
tenure of membership is five years and Ihey shall not be 
eligible for reappointment. An Adviser cannot be a 

9a 



The New Coi^stitution (Contd.) 

Member of Paiiiament during his tenure of AJvisership. 
The sahiry shall be / 1350 per annum, and persons with 
Indian domicile shall get £ 600 in addition. An Adviser 
may be removed by the Secretary of State if the Adviser is 
unfit to hold office by reason of infirmity. (S. 278) Accounts 
of the Secretary of State in Council with the Bank of Eng- 
land shall be transferred to the Secretary of State, and the 
Council of India shall be dissohed from that date. 

Organisation . — The expenses of the salary of the 
Secretary of State and his Department ihall be paid out of 
moneys provided by Parliament, and the Federation shall 
pay into the Exchequer such contribution as may be agreed 
for the expenses incurred by the Secretary of State in the 
discharge of his duties on behalf of the Federation. The 
establishment of the Secretary of State in Council shall be 
transferred to the Secretary of State and contributions for 
their pensions, gratuities etc., for services so far rendered, 
shall be paid by the Federation. This applies to the 
Auditor of the Accounts of the Secretary of State in 
Council and his Staff. Provision is also made for the 
contribution from the Federation to the continuance of the 
usual subscription paid previously or payable by the 
Secretar)' of State in Council out of Indian revenues to 
the Regular Widows' Fund, the Elder Widows' Fund and 
the India Office Provident Fund to such extent as may be 
necessary. 

Miscellaneous and General. 

The Crown and Indian States:— Nothing in the Act 
affects the rights and obligations of the Crown in relation 

99 



THii Indian Constitution Ch. V 

to any Indian State except in so far as a Federated State 
is affected by the Instrument of Accession of that State. 
(S. 285^ The Governor-General, shall, on the request for 
assistance of His Majesty's Representative for relations with 
Indian States, cause the necessary armed forces to be em- 
ployed for the due discharge of the functions. The net 
additional expenses in connection with the employment of 
those forces shall be deemed to be expenses of His Majesty 
incurred in discharging the said functions of the Crown. 
(S. 286). Arrangements may be made between the said 
Representative and the Governors of Provinces for the 
Governors and Provincial Staff to assist him in discharging 
his functions. 

Aden : — S. 288 deals with the issuing of Order in 
Council for the separation of Aden from British India. 

New Provinces = — Since the passing of the Act, Sind 
and Orissa have been constituted into separate Provinces. 
His Majesty, may, by order in Council, create a new 
Province, increase or diminish the area of a Province or 
alter the boundaries thereof. 

Franchise: — His Majesty in Council may make provision 
with respect to the details of franchise and elections e. g. 
delimitation of territorial constituencies, qualifications of 
candidates and voters, the conduct of elections, election 
disputes, expenses, corrupt practices at elections etc. 

Legal Matters 

Exisiing Law: — The existing law in India is to continue 
in force until altered or repealed. His Majesty, may, by 
order in Council, order the adaptation or modification of the 

100 



The New Constitution (Contd.) 

existing Indian law as may be deemed expedient to bring 
it into conformity with this Act, till a competent Legis- 
lature passes the necessary Law. 

Foreign Jurisdiction i— It is open to His Majesty, 
in accepting the Instrument of Accession, to exclude any 
area in a Federated State from the authority of the Federal 
Executive or Legislature after previous notice to the Ruler; 
otherwise, such authority will extend to the Federated 
State by virtue of the Instrument of Accession. His Majesty 
may, later on, relinquish such exclusion. His Majesty may 
relinquish his jurisdiction in any State under the Foreign 
Jurisdiction Act-1890 after the Accession of a State becomes 
effective. ( S. 294 ) 

Miscellaneous: — The Governor' General has powers of 
suspension, remission or commutation of death-sentence 
passed by a British Indian Court. His Majesty, and by 
delegation, the Governor-General, have the prerogative of 
granting pardons, reprieves, respites and remissions of 
punishments. No member of the Federal or Provincial 
Legislature shall be a member of any Revenue Appellate 
Court. 

The Governor has power to constiutue tribunals in 
special matters as before. No Provincial Legislature or 
Government can pass Laws prohibiting or restricting 
internal trade, or impose discriminatory tax on manufactures. 
British Subjects domiciled in India are not to be subjected 
to disability in holding or acquiring land, or in being 
eligible for offices, or in carrying on any profession, on the 
ground of religion (S. 29S) Restriction based on the 
personal law and custom of persons, or restrictions on the 

101 



The Indian Constitution Ch. V 

transfer of land from agricultural classes to non-agricultural 
classes, shall, however, be given effect to. The Governor 
and Governor-General, have, however, a special responsibility 
to safe-guard the legitimate interests of the Minorities. 
Compulsory acquisition of property for public purposes 
shall be made only on payment of due compensation to the 
owner. Provision is made for the protection of certain 
rights, privileges and pensions granted on political consi- 
derations or compassionate grounds, and of titles conferred 
or other privileges granted. Previous sanction is required 
for Bills relating to transference of land to public ownership. 

High Commissioner: — There shall be a High Com- 
missioner for India in the United Kingdom appointed by 
the Governor-General exercising his individual judgment. 
He shall perform on behalf of the Federation such functions 
as directed by the Governor-General including the making 
of contracts. He may perform functions on behalf of the 
Province'with the approval of the Governor-General. (S.302) 

General Provisions: — The Sheriff of Calcutta shall be 
appointed annually by the Governor of Bengal (exercising 
his individual judgment) from a panel of three persons 
nominated by the High Court. The Sheriff shall hold office 
during the pleasure of the Governor. Acting Governor-Gen- 
eral and acting Governors shall have the same powers as the 
Governor-General or Governor respectively. There is 
personal immunity for the Governor, Governor-General 
and Secretary of State and His Majesty's Representative 
from any proceedings or process in any Court in India. 
A suit may however be brought against the Federation, a 
Province or the Secretary of State as a body-Corporate by 
any person who feels aggrieved, as already provided. 

102 



The New Constitution (Cont.l.) 

Without the sanction of His Majesty in Council, no pro- 
ceeding shall lie in any Court in India for anything done 
during his term of oflice, against the G-G, the Governor, 
or the Secretary of State. Provision is made for the removal 
of disqualifications on the occasion of the first election to 
the Legislatures, by reason only of a person being a Minister 
or a non-official Member of the Governor's or Governor- 
General's Executive Council or of a person holding an office 
which was not a whole-time office remunerated either by 
salary or fees. 

Constitutional Amendments:— The Federal Legi- 
slature may pass resolutions recommending the am«nd- 
ment of the provisions regarding the size and composi- 
tion of the Chambers, or the metliod of election, or 
qualification of members without interfering with the 
proportion between the number of seats in the Council 
and in the Assembly and the proportion between 
British Indian seats and the seats allotted to Indian States. 
The Provincial Legislatures may pass resolutions reco- 
mmending amendment of the provisions relating to the 
size and composition of the Provincial Legislature and the 
method of choosing, or the qualifications of members. The 
Legislatures generally can pass resolutions regarding the 
qualification of voters. Such resohitions shall not be 
passed by the respective Legislatnics witliin ten years after 
the introduction of Provincial Autonomy or the establish- 
ment of the Federation according as it is the Provincial 
Legislature or the Federal Legislature respectively. The 
Legislatures may pass resolutions, that in the case of women, 
literacy shall be substituted for any higher educational 
standard prescribed for franchise, or that they should, if 

103 



The Indian Constittttion Ch. V 

duly qualified, be registered as voters without any applica- 
tion by them. The motions for the resolution shall be 
made at the instance of the Ministers. Addresses may be 
presented to the Governor or Governor-General for sub- 
mission to His Majesty praying for such resolutions being 
communicated to Parliament by the Secretary of State 
who shall place them before Parliament within six months 
with a statement of action proposed to be taken. The 
Governor-General or the Governor acting in his discretion 
shall transmit a statement of their opinion in communica- 
ting such resolutions. In particular the effect of the amend- 
ment on the interests of the minority shall be stated, as also 
the view of the minority community in the matter, and 
whether the majority of the representatives of that minority 
in the Federal or Provincial Legislature, as the case may 
be, support the proposal. These statements shall also be 
placed before Parliament by the Secretary of State. With 
similar safe-guards for the interests of the minority and 
similar statements regarding the opinion of the representa- 
tives of the minority and after ascertaining the views of the 
Governments and Legislatures affected by any proposals, 
the necessary statements, and proposals for amendment 
on matters of reform noted above may be laid before 
Parliament by the Secretary of State in the form of draft 
Orders in Council whether ten years have elapsed or not. 
The number of State representatives in the Federal Legis- 
lature shall not be altered without the consent of the Ruler 
of the State affected thereby, (S. 308) 

Orders in Council:— The Secretary of State shall lay 
before Parliament drafts of Orders in Council which shall 
be issued only after an address is presented to His Majesty 

104 



The New Constitution (Contd.) 

by Parliament, When Parliament is not in Session, the 
order in Council may be issued without this formality if 
the Secretary of State is of opinion that the order should 
be issued forthwith. But it shall cease to have effect at the 
expiration of twenty-eight days from the date on which the 
House of Commons first sits after the order unless the 
order is approved within that period by the Resolutions of 
Parliament. These provisions shall not apply in connection 
with appeals to His Majesty in Council or to orders 
sanctioning the taking of proceedings against a person who 
was Governor-General or His Majesty's Representative 
for relations with Indian States, or Governor or Secretary 
of State. (S 309) His Majesty in Council may, by order in 
council, make provision for dealing with difficulties in the 
transition from the Old to the New Act by directing suit- 
able adaptations of both the Acts for a limited period and by 
other temporary provisions. 

Definitions: — Section 311 deals with interpretation. 
' Corporation Tax ' means any tax on so much of the income 
of companies as does not represent agricultural income, 
being a tax to which the enactments requiring companies to 
make deductions in respect of income-tax from payment of 
interest on dividends have no application." 

Transitional Provisions : — Section 315 states that 
between the establishment of Provincial Autonomy and the 
establishment of the Federation, the Indian Legislature 
shall exercise the powers of the Federal Legislature except 
in imposing limits to the power of the Governor-General 
in borrowing money. During such period the Executive 
authority of the Governor-General in Council shall extend 
to matters within the legislative competence of the Indian 

C.L, 14 105 



The Indian Constitution Ch. V 

Legislature, to the raising of Naval, Military and Air 
Forces and the governance thereof, and to make treaties. 
But the said authority does not extend to matters within 
the legislative competence of the Provincial Legislature or 
to enlist in any Force any person other than a British subject 
or a native of India. The provision as to previous sanction for 
legislation, as to broadcasting, instructions to the Federal 
Railway Authority and the Reserved Services shall have effect 
in regard to defence, external affairs, ecclesiastical affairs 
and tribal areas, as they have effect under the Act in 
matters where the Governor-General is to exercise his 
discretion and has special responsibilities. The general 
control of the Secretary of State shall continue and he shall 
not act except with the concurrence of his Advisers in 
Revenue grants and appropriations during this period. 

Provision is made for the continuance of certain 
Sections of the Government of India Act of 1919 (Vide the 
ninth Schedule). The Federal Public Services Commission, 
the Federal Court, nnd the Federal Railway Authority 
may come into existence and may function earlier than the 
establishment of the Federation. The rights and liabilities 
of the Governor-General in Council during the interim 
perio-l, an 1 of tha Governor-in-Council till the intro.luction 
of Provincial Autonomy, shall continue to be those of the 
Federation. Similar provision is also made for the rights 
and liabilities of the Secretary of State in Council as well. 

Commencement and Repeal ; — The establishment of 
Federation and the introduction of Provincial Autonomy 
shall take place on dates appointed by His Majesty, The 
Government of India Act, is repealed. But the repeal shall 

106 



The New Constitution (Contd.) 

not affect the Preamble totheGovernment of India Act,i9i9, 
nor shall it affect appointments made under any enactment 
repealed in the tenth Schedule relating to repeals. 

THE SCHEDULES. 

Federal Legislature: — The First Schedule of the Act 
deals with the composition of the Federal Legislature. The 
representatives should be either British subjects or Rulers or 
subjects of Federated States. For the Council of State, a 
representative should be not less than thirty years of age, 
and for the Federal Assembly not less than twenty-five 
years of age. Out of 156 seats in the Council of State to 
be filled in by representatives of British India, 150 shall 
be filled by members elected by the constituencies in 
British India, and 6 seats shall be filled by persons chosen 
by the Governor-General in his discretion. The Provinces 
shall be divided into territorial constituencies for election to 
general seats, Sikh seats and Muhammadan seats for the 
Council of State. Separate electoral colleges consisting of 
such Anglo-Indians, Europeans and Indian Christians as 
the case may be, as are members of the Council of any 
Governor's Province or of the A.ssembly of such a Province, 
shall elect members for the Anglo-Indian, European and 
Indian Christian seats respectively. 

Provision is made that of the persons first elected by 
the general constituency for the Council of State, one-third 
shall be chosen for three years, one-third for six years, and 
one-third for nine years; and thereafter, in every third 
year, persons shall be chosen to fill for nine years the seats 
then becoming vacant, in consequence of this provision. 
Of the seven persons elected for the European seats, three 

107 



The Indian Constitution 

shall be for three years^ one shall be for six years, 
and three for nine years. Out of the two Indian Christians, 
one shall be for three years, and one for nine years. 
Out of the six persons chosen by the Governor-General, two 
shall be for three years, two for six years, and two for nine 
years. The Anglo-Indian representative shall be for nine 
years. 

In the Federal Assembly, three seats not allotted to 
any Provinces shall be filled up by the representatives of 
Commerce and Industries, chosen by Chambers of Commerce 
etc. and one by a representative of labour chosen by 
labour organisation. The Hindu, Muhammadan and Sikh 
seats will be filled by the representatives of those com- 
munities in the Provincial Assemblies voting separately for 
a prescribed number of communal seats. Seats allocated 
to Europeans, Anglo-Indians, Indian Christians and women 
are to be filled by the representatives of these groups in the 
Provincial Assemblies voting in ad hoc electoral colleges. 
In the case of a seat allotted to a Province which is to be 
filled by a landholder, it shall be filled by landholders voting 
in territorial constituencies. 

States' Representatives: — The Rulers of States consti- 
tuting a group of States to which a seat is allotted in the 
Council of State, shall in rotation, appoint a person to fill 
that seat. The Rulers of States constituting a group of 
States to which a seat is allotted in the Federal Assembly, 
shall appoint jointly a person to fill that seat. With the 
approval of the Governor-General, such Rulers, may, by agree- 
ment, appoint jointly a person to fill a seat in the 
Council of State instead of by rotation (See extract from 
Schedule for duration of membership). 

108 



The New Constitution (Contd.) 

Regarding the establishment of Federation on the 
Accession of a certain number of States, it is provided as 
follows: — 

1. If the Rulers of at least one-half of the States in- 
cluded in any group to which one seat in the Council of State 
is allotted, accede to the Federation, they shall be deemed 
as being entitled to choose one member. 

2. If, of the Rulers of States included in the groups 
to be formed out of the States comprised in Division XVII 
of the Table of Seats, sufficient accede to the Federation 
to entitle them to appoint one member or two members of 
the Federal Assembly, the Rulers so acceding shall be 
reckoned as being entitled together to choose one member 
of the Council of State and, if sufficient accede to entitle 
them to appoint three or more members of the Federal 
Assembly, the Rulers so acceding shall be reckoned as 
being entitled together to choose two members of the 
Council of State; and 

3. The Population of a State shall be talien to be the 
population attributed thereto in column five of the Table of 
Seats or, if it is one of the States comprised in the said 
Division XVI] of the Table, such figure as the Governor- 
General may in his discretion determine, and the total 
population of the State shall be the total stated at the end 
of the Table. 

Thi second Schedule gives the provisions of the x\ct 
which may be amended without affecting the Accession 
of a State. The third Sclicdule prescribes the salaries and 
allowances of the Governor-General and the Governors. 
The fourth Schedule gives the forms of Oath or affirmation. 

109 



The Indian Constitution 

The subject of the Ruler of an Indian State appointed to 
the Legislature has to swear that "saving the faith and 

allegiance which 1 owe the Ruler of the State, his 

heirs and successors, I will be faithful etc., etc, to His 
Majesty the King-Emperor of India." 

Provincial Legislatures: — The fifth Schedule deals with 
the composition of the Provincial Legislatures. The age- 
limit for members is the same as in the case of the Federal 
Council and Assembly respectively; and the scheme for 
election or representation is by territorial coDbtituencies 
for the Provincial Assemblies. For reservation of seats for 
members of the scheduled castes and for the seven seats 
for the Marathas in Bombay, the scheme shall be such that 
in each constituency there shall be at least one unreserved 
seat. For seats reserved for scheduled castes, all members 
of the caste entitled to vote in that constituency shall take 
part in a primary election held for electing four candidates 
for each such reserved seat, and no member not so elected 
as a candidate at such an election shall be qualified to hold 
that reserve seat, or any other seat if so prescribed. Women 
shall be chosen according to territorial constituencies or 
special constituencies for electing women members. 



For election to the Legislative Councils also there 
may be territorial constituencies for filling up General seats, 
Mohammedan Seats, European Seats, Indian Christian 
Seats and so on. 

Franchise:— 7%£? sixth Schedule deals with Franchise. 
Nobody can be a voter unless he is a British Subject or 
Ruler or Subject of a Federated State or the Ruler or 
Subject of any other Indian State under conditions that may 

11.0 



The Nf.w Constitution (Cont'L) 

be prescribed. He must not be of unsound mind or 
declared to be so by a competent Court. In a Sikh, 
Mohammedan, Anglo-Indian or Indian Christian consti- 
tuency, the voter must belong to the respective community. 
Such voters shall not vote in the General constituency. 

Except in Provinces where constituencies have been 
specially formed for electing women members — in which 
case a person can vote in the General constituency and in 
the particular Women members constituency as may be 
prescribed by the rules — no voter shall vote in more than 
one territorial constituency. A person shall not be included 
as a voter if he is disqualified on account of corrupt prac- 
tices at elections or other election offences. Property held 
in a fiduciary capacity shall be left out of account in 
calculating the total property for acquiring the qualification 
of a voter. The Schedule then gives the special qualifica- 
tions in each of the Provinces. 

The seventh Schedule gives the Legislative Lists ( See 
extracts from Schedules below). 

Federal Railway Authority :— The eighth Schednk 
deals with the Federal Railway Authority. It shall consist 
of seven persons appointed by the Governor-General. To 
be a member, a person should have had experience in 
Commerce, Industry, Agriculture, Finance or Administra- 
tion or should be or should have been within twelve months 
last preceding, a member of the Federal or any Provincial 
Legislature or in the service of the Crown in India or a 
Railway official in India. Of the first members three shall 
be appointed for three years at the expiration of which 
they are eligible for reappointment for a further term of 
three years or five years. In other cases, the term shall 

Ul 



The Indian Constitution 

be for five years with the eligibility for appointment 
for another five years. Matters coming up before the 
Authority shall be decided by a majority of the members 
present. The person presiding shall have a second or 
casting vote in the case of equality of votes. Any person 
concerned in any Railway contract shall not take part in 
a discussion of that subject and shall make a full disclosure 
of all the facts. At any meeting persons deputed by the 
Governor-General to represent him may attend and speak 
but not vote. The Head of the Executive Staff of the 
Authority shall be a Chief Railway Commissioner who 
shall be experienced in Railway administration. He shall 
be appointed by the Governor-General exercising his 
individual judgment after consultation with the Authority. 
The Chief Commissioner shall be assisted by a Financial 
Commissioner appointed by the Governor-General and by 
Additional Commissioners with experience in Railway 
administration appointed by the Authority on the recom- 
mendation of the Chief Railway Commissioner. The Chief 
Commissioner shall not be removed from ofifice except by the 
Authority with the approval of the Governor-General. The 
Financial Commissioner shall not be removed from office 
except by the G-G. The Chief Commissioner and the 
Financial Commissioner have the rieht to attend meetings 
of the Authority. The Financial Commissioner may require 
any matter relating to finance to be referred to the Autho- 
rity, The Authority shall not be liable to pay Indian income- 
tax or super-tax on its income, profits or gains. The 
Reserve Bank of India shall be entrusted v/ith all the 
moneys of the Authority on the same lines as the Bankers 
for all the transactions of the Authority and on the same lines 
as the Bank holds moneys of the Federal Government. 



ai2 



The New Constitution (Contd.) 

The 7imth Schedule gives the Sections of the Govern- 
ment of India Act 1919 which are continued in force with 
amendments until the establishment of the Federation. 
They are Sections 36-43 dealing with the members of the 
Governor-General's Executive Council and meetings; 
Sections 63, 63-A, 63-B, 63-C, 63-D, 63-E, 64, 67, 67-A, 
67-B, 6'^, 69, & ']2 dealing with the composition and 
functions of the Indian Legislature and the assent of the 
G-G to Bills, power of the Crown to disallow Acts and the 
power to make Ordinances in case of emergency; Sections 
85, 86, 87, 89, 92, 93 dealing with salaries, allowances, 
leave of absence, vacation of office, temporary or acting 
appointments of the Governor-General and members of the 
Executive Council; and Section 129-A which is supple- 
mental providing for the making of rules under the Act. 

The tenth Schedule contains the List of enactments 
repealed. It is stated that the extent of the repeal of the 
Government of India Act 1919 relates to the whole Act 
except the Preamble and sub-section i of Section 47. 



C. L. 15 113 



Chapter VI^ 
the government of india act, 19 35. 

PART I. 
INTRODUCTORY, 

1. Short title, 

2. Qovernment of India by the Crown :--(i) All rights, 

authority and jurisdiction heretofore belonging to His 
Majesty the King, Emperor of India, which appertain or 
are incidental to the government of the territories in India 
for the time being vested in him, and all rights, authority 
and jurisdiction exercisable by him in or in relation to any 
other territories in India, are exercisable by His Majesty, 
except in so far as may be otherwise provided by or under 
this Act. or as may be otherwise directed by His Majesty. 

Provided that any powers connected with the exercise 
of the functions of the Crown in its relations with Indian 
States shall in India, if not exercised by His Majesty, be 
exercised only by, or by persons acting under the authority 
of, His Majesty's Representative for the exercise of those 
functions of the Crown, 

* Only the more important Sections of the Act are 
reprinted in extonso. To several of them explanatory notes are 
also given. In other cases, only the number and headings of 
Sections are printed to facilitate reference. Students would do 
well to consult the summary given for the corresponding 
portions in previous chapters. 

X14 



The Government of India Act, 19^5. 

(2) The said rights, authority and jurisdiction shall 
include any rights, authority or jurisdiction heretofore 
exercisable in or in relation to any territories in India 
by the Secretary of State, the Secretary of State in Council, 
the Governor-General, the Governor-General in Council, 
any Governor or any Local Government, whether by 
delegation from His Majesty or otherwise. 

NOTES :— Regarding the legal basis of the ne-v Cunsti- 
tutioD, the J P. C. Report stated :— 

*' We apprehend, therefore, that the legal basis of a 
reconstituted Government of India must be, first, the resump- 
tion into the hands of the Crown of all rights, authority, and 
jurisdiction in and over the territories of British India, 
T^'hetber they are at present vested in the Secretary of State, 
the Governor-General in Council, or in the Provincial Govern- 
ments and Administrations; and second their redistribution in 
such manner as the Act may prescribe (Paragraph 153). 

But the Crown also possesses rights, authority and juris- 
diction elsewhere in India, including those rights which are 
comprehended under the name of Paramountcy. All these are 
at present exercised on behalf of the Crown, under the general 
control of the Secretary of State, by the Governor-General in 
Council, and it will be necessary that they should also be 

resumed in their entirety into the hands of the Crown 

Outside the federal sphere, the States' relations will be exclu- 
sively with the Crown the right to tender advice to the 

Crown in this regard will lie with His Majesty's Government." 
(Paragraph 158). 

"( See the White Paper (Paragraph 9 ), and notes to 
S. 285 below ). 

115 



The Indian Constitution Ch. VI 

The proviso to Section 2 (1) is new and did not find a 
place in the Bill. Sir Samuel Hoare in his Memorandum 
stated: — " It is not iutondod that special powers in relation to 
the State should, if not exercised by His Majesty himself, be 
delegated to any other authority than the Viceroy as the 
Crown's representative, and an amendment to make this plain 
will be considered." The proviso was accordingly inserted. 

3. The Qovernor-Qeneral o( India and His Majesty's 
Representative as regards relations with Indian States:-(l)The 
Governor-General of India is appointed by His Majesty by 
a Commission under the Royal Sign Manual and has — 

(a) all such powers and duties as are conferred or 
imposed on him by or under this Act; and 

(b) such other powers of His Majesty, not being 
powers connected with the exercise of the 
functions of the Crown in its relations with 
Indian States, as His Majesty may be pleased 
to assign to him. 

(2) His Majesty's Representative for the exercise of 
the functions of the Crown in its relations with Indian 
States is appointed by His Majesty in like manner and 
has such powers and duties in connection with the exercise 
of those functions (not being po\vers or duties conferred or 
imposed by or under this Act on the Governor-General) as 
His Majesty may be pleased to assign to him. 

(3) It shall be lawful for His Majesty to appoint one 
person to fill both the said offices. 

4. The Commander-in-Chief in India:— There shall be 
a Comniandcr-in*Chief of His Majesty's Forces in India 
appointed by Warrant under the Royal Sign Manual. 

116 



The Government of India Act, 1935. 

Notes:-The J. P. C. lieport stated;- "Although the execu- 
tive authority of the Federation vested in the Governor-General 
as the King's representative includes the superintendence, direc- 
tion and control of the Military Government, the command of 
the Forces in India will be exercised by a Commander-in-Chief 
to be appointed by His Majesty, 

PART II. 
THE FEDERATION OF INDIA. 

CHAPTER I. 

Establishment of Federation and Accession of Indian States. 

5. Proclamalion of Federation of India:— (i) It shall 
be lawful for His Majesty, if an address in that behalf has 
been presented to him by each House of Parliament and 
if the condition hereinafter mentioned is satisfied, to 
declare by Proclamation that as from the day therein 
appointed there shall be united in a Federation under the 
Crown, by the name of the Federation of India, — 

(a) the Provinces hereinafter called Governors' Pro- 
vinces; and 

(b) the Indian States which have acceded or may 
thereafter accede to the Federation; 

and in the Federation so established there shall be inclu- 
ded the Provinces hereinafter called Chief-Commissioners' 
Provinces. 

( 2 ) The condition referred to is that States— 

(a) the Rulers whereof will, in accordance v/ith the 
provisions contained in Part II of the First 
Schedule to this Act, be entitled to choose not 

117 



The Indian Constitution Ch. Vl 

less than fifty-two members of the Council of 
State; and 

(b) the aggregate population whereof, as ascertained 
in accordance with the said provisions, amounts 
to at least one-half cf the total population of 
the States as so ascertained, 

have acceded to the Federation. 

Notes:— See sumoiary of Schedule 1 (page 109) regarding 
the computation of the nuruber of members under sub^section 
2(a). 

6. Accession of Indian 5tatcs:— ( i ) A State shall be 
deemed to have acceded to the Federation if His Majesty 
has signified his acceptance of an Instrument of Accession 
executed by the Ruler thereof, whereby the Ruler for him- 
self, his heirs and successors — 

(a) declares that he accedes to the Fedenition as 
established under this Act, with the intent that 
His Majesty the King, the Governor-General of 
India, the Federal Legislature, the Federal 
Court and any other Federal authority establish- 
ed for the purposes of the Federation shall, by 
virtue of his Instrument of Accession, but sub- 
ject always to the terms thereof, and for the 
purposes only of the Federation, exercise in 
relation to his State such fimctions as may be 
vested in them by or under this Act; and 

(b) assumes the obligation of ensuring that due 
effect is given within his State to the provisions 
of this Act so far as they are applicable therein 
by virtue of his Instrument of Accession: 



118 



The Government of India Act, 1935. 

Provided that an Iiistrnraent of Accession may be 
executed conditionally on the establishment of the Federa- 
tion on or before a specified date, and in that case the State 
shall not be deemed to have acceded to the Federation 
if the Federation is not established until after that date. 

( 2 ) An Instrument of Accession shall specify the 
matters which the Ruler accepts as matters with respect 
to which the Federal Legislature may make laws for his 
State, and the limitations, if any, to which the power of 
the Federal Legislature to make laws for his State, and 
the exercise of the executive authority of the Federation in 
his State, are respectively to be subject. 

( 3 ) A Ruler may, by a supplementary Instrument 
executed by him and accepted by His Majesty, vary the 
Instrument of Accession of his State by extending the 
functions which by virtue of that Instrument are exercis- 
able by His Majesty or any Federal Authority in relation 
to his State. 

( 4 ) Nothing in this section shall be construed as re- 
quiring His Majesty to accept any Instrument of Accession 
or supplementary Instrument unless he considers it proper 
so to do, or as empowering His Majesty to accept any such 
Instrument if it appears to him that the terms thereof are 
inconsistent with the scheme of Federation embodied in 
this Act: 

Provided that after the establishment of the Federa- 
tion, if any Instrument has in fact been accepted by His 
Majesty, the validity of that Instrument or of any of its 
provisions shall not be called in question and the provisions 
of this Act shall, in relation to the State, have effect subject 
to the provisions of the Instrument. 

119 



Jhe Indian Constitution Ch. VI 

( 5 ) It shall be a term of every Instrument of Acce- 
ssion that the provisions of this Act mentioned in the Second 
Schedule thereto may, without affecting the accession of 
the State, be amended by or by authority of Parliament, 
but no such amendment shall, unless it is accepted by the 
Ruler in a supplementary Instrument, be construed as 
extending the functions which by virtue of the Instrument 
are exercisable by His Majesty or any Federal authority in 
relation to the State. 

( 6 ) An Instrument of Accession or supplementary 
Instrument shall not be valid unless it is executed by the 
Ruler himself, but, subject as aforesaid, references in this 
Act to the Ruler of a State include references to any persons 
for the time being exercising the powers of the Ruler of the 
State, whether by reason of the Ruler's minority or for any 
other reason. 

( 7 ) After the establishment of the Federation the 
request of a Ruler that his State may be admitted to the 
Federation shall be transmitted to His Majesty through 
the Governor-General, and after the expiration of twenty 
years from the establishment of the Federation the Gov- 
ernor-General shall not transmit to His Majesty any such 
request until there has been presented to him by each 
Chamber of the Federal Legislature, for submission to 
His Majesty, an adrress praying that His Majesty may 
be pleased to admit the State into the Federation. 

( 8 ) In this Act a State which has acceded to the 
Federation is referred to as a Federated State, and the 
Instrument by virtue of wiiich a State has so acceded, 
construed together with any supplementary Instrument 
executed under this section, is referred to as the Instrument 
of Accession of that State. 



120 



The Government of India Act, 1935. 

( 9 ) As soon as may be after any Instrument of 
Accession or supplementary Instrument has been accepted 
by His Majesty under this section, copies of the Instrument 
and of His Majesty's Acceptance thereof shall be laid 
before Parliament, and all courts shall take judicial notice 
of every such Instrument and Acceptance. 

Notes : — See Appendix G for the Draft Instrument of 
Accession. The J. P. C. Report stated : — "The rights, authority 
and jurisdiction which will be conferred by the Crown on the 
new Central Government will not extend to any Indian State. 
It follows that the accession of an Indian State to the Federa- 
tion cannot take place other than by the voluntary act of its 
Ruler. The Constitution Act cannot itself make any Indian 
State a member of the Federation (Paragraph 154). It would, 
we think, be very desirable that the Instruments of Accession 

should in all cases be in the same form but there can be 

no obligation on the Crown to accept an accession, where the 
exceptions or reservations sought to be made by the Ruler are 
such as to make the accession illusory or merely colourable." 
(Paragraph 156). 

The clause in the Government of India Bill was the 
subject of considerable comment. "The Princes have all along 
looked upon the treaties of Accession as the really operative 
instruments binding them to the Federal Constitution, and not 
the Constitution Act, 'which, as an Act of Parliament, they 
cannot be expected to accept as binding on them or as applica- 
ble to their States and their subjects These treaties of 

Accession were intended to be bilateral in character creating 
rights and imposing reciprocal obligations both on the Rulers 
of Indian States and on the Crown." ( Vide Note attached to 

C.L.16 121 



The Indian Constitution Ch. VI 

the letter His Excellency the Viceroy by Their Highnesses the 
Maharaja of Patiala, the Nawab of Bhopal, andthe Maharaja 
of Bikaner, dated the 27th February 1935). 

In the same Kote Their Highnesses wrote : — " The 
documents of 1818, by which several States parted with their 
external and foreign relations in consideration of their being 
adequately protected from both foreign aggression and internal 
upheaval, were regarded as treaties of mutual friendship, amity 
and alliance. The proposed documents of 1935, by which the 
States are asked further to transfer some of their internal 
sovereignty as well to His Majesty the King as a result of 
proposals regarding Federation, are only to be Treaties of 
Accession. The Princes are asked to execute and sign these 
Instruments of Accession without regard to the derogation of 
their position from allies and absolute rulers in their own 

territories This undermining process is to be kept up and 

strengthened under the force of judge-made laws and new 
political theories, while re.inforcing the claims of paramountcy 
by the same device. It is very natural that the Princes should 
have serious objections to the process of gradual decline in 
their political status. The Princes had only agreed to federate 
in the interests of the Empire. In conclusion it would be well 
to remember that the Princes had originally accepted the 
invitation to federate out of their anxious desire to be of 
service to the Empire. The structure of the Treaty of Accession 

ought to be well in keeping with the spirit that had 

induced the States to accept the federal scheme. " It is only 
natural to expect that this aspect will be given due weight and 
importance when the reasonable reservations in the Instrument 
of Accession come up for examination. 

Sir Samuel Iloare wrote iu his Memorandum to the 
Government of India dated the 4th March 1935: — "So far as 



122 



The Government of India Act, 1935. 

regards the States, the Bill, when it has become law will pro- 
vide the machinery whereby the Indian States may severally 
accept that Constitution and thus become part of the Federa- 
tion, not because the Act is an Act of Parliament, but because 
it embodies a Constitution to which they have of their own 

volition acceded That the Constitutional structure must 

be accepted as a whole seems obvious It is contended that not 

only ought each Kuler to be able to specify those sections of 
the Act which he is willing to accept, but also that the Federal 
Constitution as regards each State is to be looked for exclusively 
in the Intrumont of Accession of that State Such a con- 
ception of Federation would imply the possibility not only of 
different Constitutions for the States and for British India, 
but even of a variety of Constitutions among the States them- 
selves Their Highnesses lay stress on what they describe 

as the bilateral nature of the Instruments of Accession. These 
Instruments are bilateral in so far as they have no binding 
force until His Majesty has signified his acceptacce of them; 
but His Majesty's Government cannot on that ground accept the 
view that they are to be described as ' treaties". Though the 
word 'treaty' is not used in S. 6 and only the words "Instru- 
ment of Accession" are used, the suggestions were partly ao- 
cepted; and Clause 6 of the Bill was modified by the subsitutiou 
of the words "accedes to the Federation as established under 
this Act" instead of the words "accepts this Act as applicable 
to his State and to his subjects." Again the words "by virtue 
of his Instrument of Accession, but subject always to the terms 
thereof, and for the purposes only of the Federation" are addi- 
tions in Section 6 [1] (a); and the words " to the provisions of 
the Act so far as they are applicable therein by virtue of his 
Instrument of Accession " instead of " to this Act " used in 
the Bill are also additions in Section 6 (1) (b) to make the 
meaning clear. Sub-section (4) is also now. 



123 



The Indian Constitution Ch. VI 

CHAPTER II. 
The Federal Executive.* 
The Governor-General. 
7. — Functions of Governor=Qeneral. 

8.— Extent of executive authority of the Federation: — 

( I ) Subject to the provisions of this Act, the executive 
authority of the Federation extends — 

(a) to the matters with respect to which the Federal 
Legislature has power to make laws; 

(h) to the raising in British India on behalf of His 
Majesty of naval, military and air forces and 
to the governance of His Majesty's forces borne 
on the Indian establishment; 

(c) to the exercise of such rights, authority and 
jurisdiction as are exercisable by His Majesty 
by treaty, grant, usage, sufferance, or otherwise 
in and in relation to the tribal areas: 

Provided that — 

(i) the said authority does not, save as expressly 
provided in this Act, extend in any Province 
to matters with respect to which the Pro- 
vincial Legislature has power to make laws; 



*Constitutional Governments are classified as Parliamen- 
tary or Presidential. Under the former the Executive is 
responsible to the Legislature and liable to be dismissed by it. 
Under the latter, the Chief of the Executive is elected directly 
by the people or their representatives for a fixed period and is 
not responsible to the Legislature, 



124 



The Government of India Act, 1935. 

(ii) the said authority does not, save as expressly 
provided in this Act, extend in any Federated 
State save to matters with respect to which 
the Federal Legislature has power to make 
laws for that State, and the exercise thereof 
in each State shall be subject to such limita- 
tions, if any, as may be specified in the 
Instrument of Accession of the State; 

(iii) the said authority does not extend to the 
enlistment or enrolment in any forces raised 
in India of any person unless he is either a 
subject of His Majesty or a native of India 
or of territories adjacent to India; and 

(iv) commissions in any such force shall be granted 
by His Majesty save in so far as he may be 
pleased to delegate that power by virtue of 
the provisions of Part I of this Act or other- 
wise, 

(2) The executive authority of the Ruler of a Federated 
State shall, notwithstanding anything in this section, 
continue to be exercisable in that State with respect to 
matters with respct to which the Federal Legislature 
has power to make laws for that State except in so far as 
the executive authority of the Federation becomes exercis- 
able in the State to the exclusion of the executive authority 
of the Ruler by virtue of a Federal law. 

Notes:— Tho words "subject to the provisions of this Act" 
at the commencement of sub-section (1) require a word of 



125 



The Indian Constitution Ch. VI 

explanation. Sir Samuel Hoars wrote in bis Memorandum:— 
"Whore administration of a subject bas, in virtue of an agree- 
ment attached to tbe Instrument of Accession, been under- 
taken by tbe Ruler of a State, tbe executive authority of tbe 
Federation cannot itself undertake such administration, though 
it has appeared unnecessary to make any express provision to 
this effect in view of tbe opening words of clause 8 "Subject 
to the provisions of this Act." 

Sub-Section (2) is an addition in the Act not found in 
the Bill; tbe second proviso to sub-section (1) c makes tbe 
meaning clearer. Sir Samuel Hoare wrote, "Since by clause 8, 
tbe executive authority of tbe Federation is correlated to tbe 
legislative power, it follows ( and indeed it is expressly so 
provided) that a Ruler can to the same extent exclude tbe 
exercise of tbe executive authority in his State or qualify it 
by corresponding conditions of limitations. But His Majesty's 
Government recognize that in a few instances the Bill does 
confer an executive authority on the Federation which is not 
related to an item in tbe Federal Legislative List and it 
is undoubtedly the case that, as the Bill stands at present, 
a Ptulor could not by bis Instrument of Accession exclude or 
qualify the executive authority of the Federation in respect 

of these matters His Majesty's Government are, however, 

willing to make it clear that the executive authority of tbe 
State would continue in respect of its own laws, being laws 
not inconsistent with any Federal law applying to the State; 
and that tbe executive authority of the State would only be 
superseded by the executive authority of the Federation when 
the latter is exercised in virtue of a Federal Law." Subsection 
(2) was added, as also proviso (ii) to subsection. (1) (c).in its 
clear and new form. 



12'G 



The Government of India Act, 1935. 
Administraiion of Federal Affairs. 

*9. Council of ministers.— ( I ) There shall be a 
council of ministers, not exceeding ten in number, to aid 
and advise the Governor-General in the exercise of his 
functions, except in so far as he is by or under this Act 
required to exercise his functions or any of them in his 
discretion: 

Provided that nothing in this subsection shall be con- 
strued as preventing the Governor-General from -exercising 
his individual judgment in any case where by or under this 
Act he is required so to do. 

( 2 ) The Governor-General in his discretion may pre- 
side at meetings of the council of ministers. 

( 3 ) If any question arises whether any matter is or 
is not a matter as respects which the Governor- General is 
by or under this Act required to act in his discretion or to 
exercise his individual judgment, the decision of the Gover- 
nor-General in his discretion shall be final, and the validity 
of anvthinsf done bv the Governor-General shall not be 
called in question on the ground that he ought or ought 
not to have acted in his discretion, or ought or ought not 
to have exercised his individual judgment. 



* The J. P. C. Report stated :-^ "There will, therefore, 
be centripetal as well as centrifugal forces, and it seems to us 
conceivable that, until the advent of a new hitherto unknown 
alignment of parties, a Central Executive such as we have 
described may even come to function, as we believe that the 
Executive of the Swiss Confederation functions as a kind of 
business committee of the Legislature.'' 

127 



The Indian Constitution Ch. VI 

Notes : — Some sort of dyarchy is introduced in the 
Central Executive. The J. P. C. Report stated; — "It is then 
proposed that there shall be a Council of Ministers, chosen and 
summoned by the G-G and holding office during his pleasure, 
to aid and advise him in the exercise of the powers conferred 
on him by the Constitution Act other than his powers relating 
to (1) defence, external affairs and ecclesiastical affairs, and 
(2) matters left by the Act to the Governor-General's discre- 
tion "We assume therefore that they will not be entitled 

to advise him in the exercise of any prerogative powers of the 
Crown which may be delegated, presumably in the Letters 
Patent constituting the office. We are of opinion that this 
is a proper distinction to draw; that ministers should not, for 
example, have the right to advise him on the exercise of 
such a prerogative of His Majesty as the grant of honours " 

10. Other provisions as to ministers: — ( i ) The Gov- 
ernor-General's ministers shall be chosen and summoned by 
him, shall be sworn as members of the council, and shall 
hold office during his pleasure. 

( 2 ) A minister who for any period of six consecutive 
months is not a member of either Chamber of the Federal 
Legislature shall at the expiration of that period cease to 
be a minister. 

( 3 ) The salaries of ministers shall be such as the 
Federal Legislature may from time to time by Act deter- 
mine and, until the Federal Legislature so determine, shall 
be determined by the Governor-General: 

Provided that the salary of a minister shall not be 
varied during his term of office. 

1^8 



The Government of India Act, 1935. 

(4) The question whether any and, if so, what 
advice was tendered by ministers to the Governor-General 
shall not be inquired into in any court. 

( 5 ) The functions of the Governor-General with 
respect to the choosing and summoning and the dismissal 
of ministers, and with respect to the determination of their 
salaries, shall he exercised bv him in his discretion. 

11. Provisions a^ to defence, ecclesiastical affairs, 
external affairs, and the tribal areas: — ( i ) The funct- 
ions of the Governor-General with respect to defence and 
ecclesiastical affairs and with respect to external affairs, 
except the relations between the Federation and any part 
of His Majesty's dominions, shall be exercised by him in 
his discretion, and his functions in or in relation to the 
tribal areas shall be similarly exercised. 

( 2 ) To assist him in the exercise of those functions 
the Governor-General may appoint counsellors, not excee- 
ding three in number, whose salaries and conditions of 
service shall be such as may be prescribed by His Majesty 
in Council. 

Notes; — On the subjects of defence and foreign relations 
the Note of Their Higlmesse", referred to ah'eady, stated; — 
"Tlie States liavo, however, every right to expect that when the 
time arrives for transferring them to the Federal Government, 
the States would be fully consulted and adequate measures 
taken to have their own rights and privileges taken Into 
consideration. Until that time has arrived, however, the 
States desire that, so far as they are concerned, the existing 
arrangements should continue, and no further obligations on 
account of foreign relations should be undertaken without their 
previous consent,'' 

C.L.17 129 



tHE Indian Constitution Ch. VI 

Regarding the constitution of Advisory Committees the 
J. P. C. Report stated: — "An advisory body similar to that of 
the Committee of Imperial Defence, constituted at the G-G's 

discretion, might, we think, have many advantages 

and provided that the extent and methods of consultation are 
clearly understood to rest in the discretion of the G.-G., we see 
no objection to the formation of any committee or committees 
that the Federal Government and Legislature may consider 
useful.'' In another connection the Report stated ; — " We 
assume that the Department of External Affairs will maintain 
a close contact with the Department of Trade and Commerce." 

The words " except the relations between the Federation 
and any part of His Majes-ty's Dominions" in the Section may 
be noted. 

12. — Special responsibilities of QovernoroOeneral: — (i) 

In the exercise of his functions the Governor-General 
shall have the follovring special responsibilities, that 
is to say, — 

(a) the prevention of any grave menace to the peace 
or tranquillity of India or any part thereof; 

(^) the safeguarding of the financial stability and 
credit of the Federal Government; 

( c ) the safeguarding of the legitimate interests of 
minorities; 

(d) the securing to, and to the dependants of, 
persons who are or have been members of the 
public services of any rights provided or pre- 
served for them by or under this Act and the 
safeguarding of their legitimate interests; 

(e) the securing in the sphere of executive action of 
the purposes which the provisions of chapter in 

130 



The Government of India Act, 1935. 

of Part V of this Act aie designed to secure 
iu relation to legislation; 

(f) the prevention of action which would subject 
goods of United Kingdom or Burmese origin 
imported into India to discriminatory or penal 
treatment; 

{g) the protection of the rights of any Indian State 
and the rights and dignity of the Ruler thereof; 
and 

(h) the seeming that the due discharge of his func- 
tions with respect to matters with respect to 
which he is by or under this Act required to act 
in his discretion, or to exercise his individual 
judgment, is not prejudiced or impeded by any 
course of action taken with respect to any other 
matter. 

( 2 ) If and in so fiir as any special responsibility of 
the Governor-General is involved, he shall in the exercise 
of his functions exercise his individual judgment as to the 
action to be taken. 

NoTRs: — In discharging his functions in which the G-G 
is of opinion that any one of bis responsiV)iIities is involved, 
"he will bo at liberty to act in such manner as he judges 
requisite for the fulfilment of that special responsibility, even 
though this may be contrary to the advice ■which his Ministers 
have tendered." Sub-section 2 says that he shall then exercise 
his individual judgment; and Section 14 later on provides for 
the superintendence of the Secretary of State in matters where 
the G -G is required to act in his discretion or to exercise his 
individual judgment. 



131 



The Indian CoNSTitutioN Ch. VI 

Regarding sub-clause (g) of the corresponding clause in 
the Government of India Bill, the Princes' Note contained the 
follownjj^ — "Protection should be extended not only to the vital 
and legitimate interests of the Indian States but also to the 
privileges and dignity of the Rulers. They should continue 
to enjoy the recognised privileges of Sovereign Rulers." Item 
(g) has been accordingly recast in the Act. 

Regarding item (h) the J. P. C. Report stated : — "It is 
plain that the G-G must be free to exercise his own judgment 
in any m atter which affects the administration of any of the 
reserved departments, even though it arises primarily within 
tho ministerial sphere." 

Sir Samuel Hoare wrote about special responsibilities 
thus:-- '"The special responsibilities relate only to his relations 
which his Ministers ii^ the process of arriving at a decision as 
to action to be taken in tho exercise of the executive autho- 
rity of the Federation. The first special responsibility would 
not enable tho G.-G to take J^ny action in a State which the 
Federal Government was not otherwise coinpetsnt to take in 
virtue of clause 8 (now section 8) read with the provision in 
the Legislative Lists, and subject, in relation to any State, to 
any conditiois and limitations attached by the Ruler to 
acceptance of items in the Federal List. No power of interven- 
tion in a State by the G.-G. in a non-federal matter Tould flow 
from this clause." 

13. Provisions as to Instrument of InstructiOns^^^ 

( I ) The Secretary of State shall lay before Parlia- 
ment the draft of any Instrument of Instructions 
( including any Instrument amending or revoking an 
Instnimont previously issued ) which it is proposed to re- 
commend His Majesty to issue to the Governor-General, 

1^2 ; 



The Government of India Act, i935' 

and no further proceedings shall be taken in relation there- 
to except in pursuance of an address presented to His 
Majesty by both Houses of Parliament praying that the 
Instrument may be issued. 

( 2 ) The validity of anything done by the Governor- 
General shall not be called in question on the ground that 
it was done otherwise than in accordance with any Instru- 
ment of Instructions issued to him. 

Notes: — The Instrument of Instructions may bo the 
medium for setting up certain conventions. For instance, the 
J. P. 0. Report stated: — "We understand the intention of His 
Majesty's Government to be that the principle of joint deli- 
beration (between the Counsellors and the Ministers) shall be 
recognised and encouraged by the G-G's Instrument of Instruc- 
tion." In another connection the Report stated: — "Under 

the White Paper proposals, tl^e G-G is to be directed by his 
Instrument of Instructions to include "so far as possible" in 
his Ministry, not only members of important minority commu- 
nities, but also representatives of the States which accede to 
the Federation." It is submitted that though several matters 
in which the States are interested cannot be legally put in as 
reservations in the Instrument of Accession, yet they can 
apply for the same to be included in the Instrument of In- 
structions as items in which some constitutional conventions 
may be set up for safeguarding the interests and claims of 
the States. 

14. Superintendence of Secretary of State:— (i) In 

so far as the Governor-General is by or under this Act 
required to act in his discretion or to exercise his individual 
judgment, he shall be under the general control of, and 
comply with such particular directions, if any, as may 

m 



The Indian Constitution . Ch. Vl 

from time to time be ^iven to him by, the Secretary of 
State, but the validity of anything done b}' the Governor- 
General shall not be called in question on the ground that 
it was done otherwise than in accordance with the provisions 
of this section. 

15 Financial adviser to Qovernor-Qeaeral : — (i) 

The Governor-General may appoint a person to be his 
financial adviser. 

( 2 ) It shall be the duty of the Governor-General's 
financial adviser to assist by his advice the Governor-General 
in the discharge of his special responsibility for safeguarding 
the financial stability and credit of the Federal Govern- 
ment, and also to give advice to the Federal Government 
upon any matter relating to finance with respect to which 
ho may be consulted. 

( 3 ) The Governor-General's financial adviser shall 
hold office during the pleasure of the Governor-General, 
and the salary and allowances of the financial adviser and 
the numbers of his staff and their conditions of service, shall 
be such as the Governor-General may determine. 

( 4 ) The powers of the Governor-General with respect 
to the appointment and dismissal of a financial adviser, 
and with respect to the determination of his salary and 
allowances and the numbers of his staff and their conditions 
of service, shall be exercised by him in his discretion: 

Provided that, if the Governor-General has determined 
to appoint a financial adviser, he shall, before making any 
appointment other thin the first appointment, consult his 
ministers as to the person to be selected. 

134 



The Government of India Act, 1935. 

Notes:— The J. P. C. Report stated; -"We think that the 
Financial Adviser must be regarded technically as the G-O's 
adviser, Viut his advice ought to be available to Ministers 
and we hope that they will freely consult him." 

1 6 Advocatfi-Qeneial for Federation: — ( i ) The Gov- 

ernor-Gereral shall appoint a person, being a person quali- 
fied to be appointed a judge of the Federal Court, to be 
Advocate-General for the Federation. 

( 2 ) It shall be the duty of the Advocate-General to 
give advice to the Federal Government upon such legal 
matters, and to perform such other duties of a legal 
character, as may be referred or assigned to him by the 
Governor-General, and in the performance of his duties he 
shall have right of audience in all courts in British India 
and, in a case in which federal interests are concerned^ in 
all courts in any Federated Stat 3. 

( 3 ) The Advocate-General shall hold office during 
the pleasure of the Governor-General, and shall receive such 
remuneration as the Governor-General may determine. 

(4) In exercising his powers with respect to the 
appointment and dismissal of the Advocate General and 
with respect to the determination of his remuneration, the 
Governor-General shall exercise his individual judgment. 

NoTE3: — It is submitted that under the rule-making 
powers conferred on the Federal Court by S. 214, reciprocal 
rights of audience in the Federal Court should be given to the 
Advocate General of a Federated State or his substitute in 
cases in which the interests of the State are concerned. 

The J. P. C. r».eport stated: — " We think it essential 
that the Advocate-General should hold his office on a settled 



185 



The Indian Constitution Ch. VI 

tenure and should have no political associations with the 
Federal Ministry. '' 

17. — Conduct of business of Federal Government. 

CHAPTER III 
The Federal Legislature 

Gcnernl. 

18. — Constitution of the Federal Legislature. — (i) 

There shall be a Federal Legislature which shall consist 
of His Majest}^ represented by the Governor-General, and 
two Chambers, to be known respectively as the Council of 
rState and the House of Assembly (in this Act referred to as 
"the Federal Assembly"). 

(2) The Council of State shall consist of one hundred 
and fifty-six representatives of British India and not 
more than one hundred and four representatives of the 
Indian States, and the Federal Assembly shall consist of 
two hundred and fifty representatives of British India and 
not more than one hundred and twenty-five representatives 
of the Indian States. 

(3) The said representatives shall be chosen in accord- 
ance with the provisions in th-^t behalf contained in the 
First Schedule to this Act. 

(4) The Council of State shall be a permanent body 
not subject to dissolution, but as near as may be one-third 
of the members thereof shall retire in every third year in 
accordance with the provisions in that behalf contained 
in the said First Schedule. ^ 

13$ 



The Government of India Act, 1935. 

(5) Every Federal Assembly, unless sooner dissolved, 
shall continue for five years from the date appointed for 
their first meeting and no longer, and the expiration of 
the said period of five years shall operate as a dissolution 
of the Assembly, 

Notes: — Legislatures are either unicameral or bicameral 
according as the legislature consists of a single chamber or double 
chambers respectively. Sir John Marriot saysr-'-'The world has 
decided with rare uniformity in favour of the bicameral form 
of legislature. Experiments in unicameralism have been few 
and unimportant, and have invariably resulted in demonstrating 

the necessity of a second chamber The necessity of a 

counterpoise to democratic fervour; the safety that lies in 
sober second thoughts; the advisability of a check on hasty 
and ill-considered legislation; the value of an appeal from 
Philip drunk to Philip sober; the liability of a second Chamber 
to violent gusts of passion, — these are arguments for second 
Chambers. But "to devise a good Second Chamber, to discover 
for it a basis which shall be at once intelligible and differenti- 
ating, to give it powers of revision without powers of control, 
to make it amenable to permanent public sentiment and yet 
independent of transient public opinion; to erect a bulwark 
against revolution without interposing a barrier to reform — this 
is a task which has baffled the ingenuity of Constitution- 
mongers from time immemorial." It is argued that the bicam- 
eral system is essential to the successful working of a genuine 
federal system. A federal second chamber is a ready and 
convenient means of satisfying the Centrifugal sentiments 
of the federal units. 

1 9. Sessions of the Legislature, prorogation and dis= 
solution:— (i) The Chambers of the Federal Legislature 
shall be summoned to meet once at least in every year, 

g.L,18 137 



The Indian Constitutioi^ Ch. VI 

and twelve months shall not intervene between their last 
sitting in one session and the date appointed for their first 
sitting in the next session. 

20. Right of Qovernor=Qeneral to address, and send 
messages to, Chambers. 

21. Rights of ministers, counsellors and Advocate- 
General as respects Chambers. 

22. Officers of Chambers.:— ( i ) The Council of 
State shall as soon as may be choose two members of the 
Council to be respectively President and Deputy-President 
thereof and, so often as the office of President or Deputy- 
President becomes vacant, the Council shall choose another 
member to be President or Deputy-President, as the case 
may be. 

( 2 ) A member holding office as President or Deputy- 
President of the Council of State shall vacate his office if 
he ceases to be a member of the Council, may at any time 
resign his office by writing under his hand addressed to 
the Governor-General, and may be removed from his office 
by a resolution of the Council passed by a majority of all 
the then members of the Council; but no resolution for the 
purpose of this subsection shall be moved unless at least 
fourteen days' notice has been given of the intention to 
move the resolution. 

( 3 ) While the office of President is vacant, the 
duties of the office shall be performed by the Deputy- 
President, or, if the office of Deputy-President is also 
vacant, by such member of the Council as the Governor- 
General may in his discretion appoint for the purpose, and 
during any absence of the President from any sitting of the 

13$ 



The Government of India Act, 1935. 

Council the Deputy-Prebident or, if he is also absent, such 
person as may be determined by the rules of procedure of 
the Council, or, if no such person is present, such other 
person as may be determined by the Council, shall act as 
President. 

( 4 ) There shall be paid to the President and the 
Deputy-President of the Council of State such salaries as 
may be respectively fixed by Act of the Federal Legislature, 
and, until provision in that behalf is so made, such salaries 
as the Governor-General may determine. 

( 5 ) The foregoing provisions of this section shall 
apply in relation to the Federal Assembly as they apply in 
relation to the Council of State with the substitution of the 
titles "Speaker" and- "Deputy-Speaker " for the titles 
" President " and " Deputy-President" respectively, and 
with the substitution of references to the , Assembly for 
references to the Council: 

Provided that, without prejudice to the provisions of 
subsection ( 2 ) of this section as applied by this subsection, 
whenever the Assembly is dissolved, the Speaker shall not 
vacate his office until immediately before the first meeting 
of the Assembly after the dissolution. 

23. Voting in Chambers, power of Chambers to act 
notwithstanding vacancies, and quorum. ( I ) Save as 
provided in the last preceding section, all questions at any 
sitting or joint sitting of the Chambers shall be determined 
by a majority of votes of the members present and voting, 
other than the President or Speaker or person acting as 
such. 



ia9 



The Indian Constitution Ch. Vi 

The President or Speaker or person acting as such 
shall not vote in the first instance, but shall have and exer- 
cise a casting vote in the case of an equality of votes. 

Provisions as to Members of Legislature. 

2 4. Oath of members. 

2 5 Vacation of seats. 

26. Disqualifications for membership:— (i) A person 
shall be disqualified for being chosen as, and for being, a 
member of eif.her Chamber — 

{a) if he holds any office of profit under the Crown 
in India, other than an office declared by Act 
of the Federal Legislature not to disqualify 
its holder; 

{b) if he is of unsound mind and stands so declared 
by a competent court; 

(c) if he 13 an undischarged insolvent; 

{d) if, whether before or after the establishment of 
the Federation, he has been convicted, or has, 
in proceedings for questioning the validity or 
regularity of an election, been found to have 
been guilty, of any offence or corrupt or illegal 
practice relating to elections which has been 
declared by Order in Council or by an Act of 
the Federal Legislature to be an offence or 
practice entailing disqualification for member- 
ship of the Legislature unless such period has 
elapsed as may be specified in that behalf 
by the provisions of that Order or Act. 



The Government of India Act, 1935. 

( c ) if, whether before or after the establishment of 
the Federation, he has been convicted of any 
other offence by a court in British India or in a 
State which is a Federated State and sentenced 
to transportation or to imprisonment for not 
less than two years, unless a period of five 
5'ears, or such less period as the Governor- 
General, acting in his discretion, may allow 
in any particular case, has elapsed since his 
release; 

(/) if, having been nominated as a candidate for the 
Federal or any Provincial Legislature or having 
acted as an election agent of any person so 
nominated, he has fLiiled to lodge a return of 
election expenses within the time and in the 
manner required by any Order in Council made 
under this Act or by any Act of the Federal or 
the Provincial Legislature, unless five years 
have elapsed from the date by which the return 
ought to have been lodged or the Governor- 
General, acting in his discretion, has removed 
the disqualification: 

Provided that a disqualification under paragraph (/) 
of this subsection shall not takfe effect until the expiration 
of one month from the date by which the return ought to 
have been lodged or of such longer period as the Governor- 
General, acting in his discretion, may in any particular 
case allow. 

(2) A person shall not be capable of being chosen a 
member of either Chamber while he is serving a sentence 
of transportation or of imprisonment for a criminal offence, 



^m^im^mfimmti»h^: •^% i^xmt, met hes^ome 

^MMSi tsf f^ss&ii ^ tU^ 4miimWi^simt tM& three mmBti» 

hsme ^hfsM frmn the ds&e HSmsse^ m, H withm ttuee 

1sifmi0d.mfe$^Ji6^tiie€6imfkXi6n m the netOeme, nmtll 
tka. »f^fie^ <sir peiMkm U4h!^^meii^,h«t,dmin^zstfft^hd 
^tafmg wlnidlt \m messlbesMf h pfsserr^ hj Urn §tt^ 

:/j. he deemfni v^ yM- ^m ^Mce ^ ^nsHt wiHsg the C^',-vn 
^ f t!&rl^ hf tesmni 6^tj ihst^ 

f<«>' hi h z ttmsMei ^M^«c h( tka ?v: •-•>:•,.',.■. -,:'-- 



'f 



'^'-^ '^f five ietnfj^ '.'■ . \. ',Tni m Ind^ and 



"^r^nltA-- i I H I nail *» ii44itHT6i ff>v "hif» 

■y- r- . . - ...... . . -1 

o > t- - . .> - > ' • - • ■■•-'• ^ • > 

lii 



The Govekxment of India Act. io;5. 

this Act with rejspect to financial Bills, a Bill may orij^inato 
in either Chamber. 

( ^ ) Subject to ihe provisions oi iho ne-\t succeeding 
section, a Bill shall not be deemevi to have been passed by 
the Chambers ot the l.e^^islature unless it has been a^r^^d 
to by both Chambeis. either without amendment or 
with such amendments cnlv as .\re as^iecvl to bv both 
Chambers. 

i, 5 ) A Bill pendin^:; in the Le^jislature shall not laps© 
by reason of the prorc^^ation of the Chamber: 



IS, 



( 4 1 A rui pendinii in the Council ol State which has 
not been passed by the Federal Assembly shall not lapse on 
a dissolution ot the Assembly. 

^ 5 ) A Bill which is pending in the Fevleral Assembly 
or which bavins: ho^n passevi by the Federal Assembly is 
pendins: in the Council of State shall, subject to the pro- 
visions of the next sucvvelins: section, lapse on a dissolution 
of the AssombK- 

^ I. Joint sittinji* ot both ch.irnber* in cert.iin caseAr* 
(i) If after a Bill has been passevi by one Chamber and 
transmitted to the other Chamber — 

^ .} the l^ill is leiected bv the other Chamb<*r; or 

( .' ) the Chambeis have tinally disas^reevl as to the 
amendments to be made in the Bill: or 

(c) more than six months elapvSe from the date af 
the reception ot the Bdl by the other Chan\l>er 
without the Bill bein< presented to the C>Ov<?rno»^ 
<.»cneral tor his assent, 



U^ 



The Indian Constitution Ch. VI 

the Governor-General may, unless the Bill has lapsed by 
reason of a dissolution of the Assembly, notify to the 
Chambers, by message if they are sitting or by public 
notification if they are not sitting, his intention to summon 
them to meet in a joint sitting for the purpose of deliberating 
and voting on the Bill: 

Provided thnt, if it appeals to tlie Governor-General 
that the Bill relates to finance or to any matter which 
affects the discharge of his functions in so far as he is by or 
under this Act required to act in his discretion or to 
exercise his individual judgment, he may so notify the 
Chambers notwithstanding that there has been no rejection 
of or final disagreement as to the Bill and notwithstanding 
that the said period of six months has not elapsed, if die is 
satisfied that there is no reasonable prospect of the Bill 
being presented to him for his assent without undue 
delay. 

In reckoning any such period of six months as is 
referred to in this subsection, no account shall be taken of 
any time during v*diich the Legislature is prorogued or 
during which both Chambers are adjourned for more than 
four days. 

( 2 ) Where the Governor-General has notified his 
intention of summoning the Chambers to meet in a joint 
sitting, neither Chamber shall proceed further with the Bill, 
but the Governor-General may at any time in the next 
session after the expiration of six months from the date 
of his notification summon the Chambers to meet in a joint 
sitting for the purpose specified in his notification and, if 
he does so, the Chambers shall meet accordingly: 

144 



The Government of India Act, 1935. 

Provided that, if it appears to tho Governor-General 
that the Bill is such a Bill as is mentioned in the proviso 
to subsection ( i ) of this section, he may summon the 
Chambers to meet in a joint sitting for the purpose aforesaid 
at any date, whether in the same session or in the next 
session. 

( 3 ) The functions of the Governor-General under the 
provisos to the two last preceding subsections shall be 
exercised by him is his discretion. 

( 4 ) If at the joint sitting of the two Chambers the 
Bill, with such amendments, if any, as are agreed to in 
joint sitting, is passed by a majority of the total number of 
members of both Chambers present and voting, it shall be 
deemed for the purposes of this Act to have been passed by 
both Chambers: 

Provided that at a joint sitting- 
fa j if the Bill, having been passed by one Chamber, 
has not been passed by the other Chamber with 
amendments and returned to the Chamber in 
which it originated, no amendment shall be 
proposed to the Bill other than such amendments 
( if any ) as are made necessary by the delay 
in the passage of the Bill; 

( ^ ) if the Bill has been so passed and returned, 
only such amendments as aforesaid shall be 
proposed to the Bill and such other amendments 
as are relevant to the matters with respect to 
which the Chambers have not agreed, 

C.L 19 145 



tnE Indian Constitution Ch. VI 

and the decision cf the person presiding as to the amend- 
ments which are admissible under this subsection shall be 
final. 

( 5 ) A joint sitting ma}' be held under this section 
and a Bill passed thereat notwithstanding that a dissolution 
of the Assemby has intervened since the Governor-General 
notified his intention to summon the Chambers to meet 
therein. 

3 2. Assent to Bills and power of Crown to disallow 
Acts: — (0 When a Bill has been passed by the Chambers, 
it shall be presented to the Governor-General, and 
the Governor-General shall in his discretion declare 
either that he assents in His Majesty's name to the 
Bill, or that he witliholds assent therefrom, or that he 
reserves the Bill for the signification of His Majesty's 
pleasure : 

Provided that the Governor-General may in his 
discretion return the Bill to the Chambers with a message 
requesting that they will reconsider the Bill or any specified 
provisions tliereof and, in particular, will consider the 
desirability of introducing any such amendments as he may 
recommend in his message, and the Chambers shall recon- 
sider the Bill accordingly. 

(2) A Bill reserved for the signification of His 
Majesty's pleasure shall not become an Act of the Federal 
Legislature unless and until, within twelve months from 
the day on which it was presented to the Governor-General, 
the Governor-General makes known by public notification 
that His Majesty has assented thereto. 

140 



The Government of India Act, 1935. 

(3) Any Act assented to by the Governor-General 
may be disallo^^'ed by His Majesty within twelve months 
from the day of the Governor-General's assent, and 
where any Act is so disallowed the Governor-Gent ral 
shall forthwith make the disallowance known by public 
notification, and as from the date of the notification the 
Act shall become void. 

Procedure in Financial matters. 

iZ. Annual financial statement:— (i) The Governor- 
General shall in respect of every financial year cause to 
be laid before both Chambers of the Federal Legislature 
a statement of the estimated receipts and expenditure of 
the Federation for that year, in this Part of this Act 
referred to as the ''annual financial statement." 

(2) The estimates of expenditure embodied in the 
annual financial statement shall show separately — 

{a) the sums required to meet expenditure des- 
cribed by this Act as expenditure charged upon 
the revenues of the Federation; and 

{b) the sums required to meet other expenditure 
proposed to be made from the revenues of the 
Federation, 

and shall distinguish expenditure on revenue account 
from other expenditure, and indicate the sums, if any, 
which are included solely because the Governor-General 
has directed their inclusion as being neces.-^ary for the due 
discharge of any of his special responsibilities. 

(3) The following expenditure shall be expenditure 
charged on the revenues of the Federation :— 



'O" 



U7 



The Indian Constitution Ch. VI 

(a) the salary and allowances of the Governor- 
General and other expenditure relating to his 
office for which provision is required to be 
made by Order in Council; 

{b) debt charges for which the Federation is liable, 
including interest, sinking fund charges and 
redemption charges, and other expenditure 
relating to the raising of loans and the service 
and redemption of debt; 

(c) the salaries and allowances of ministers, of 
counsellors, of the financial adviser, of the 
advocate-general, of chief commissioners, and 
of the staff of the financial adviser; 

{d) the salaries, allowances, and pensions payable 
to or in respect of judges of the Federal Court, 
and the pensions payable to or in respect of 
judges of any High Court; 

(f) expenditure for the purpose of the discharge 
by the Governor-General of his functions with 
respect to defence and ecclesiastical affairs, his 
functions with respect to external affairs in so 
far as he is by or under this Act required in the 
exercise thereof to act in his discretion, his 
functions in or in relation to tribal areas, and 
his functions in relation to the administration 
of any territory in the direction and control of 
which he is under this Act required to act in 
his discretion: provided that the sum so charged 
in any year in respect of expenditure on 
ecclesiastical affairs shall not exceed forty-two 
lakhs of rupees, exclusive of pension charges; 



148 



The Government of India Act, 1935. 

(/) the sums payable to His Majesty under this Act 
out of the revenues of the Federation in respect 
of the expenses incurred in discharging the 
functions of the Crown in its relations with 
Indian States ; 
(g) any grants for purposes connected with the 
administration of any areas in a Province which 
are for the time being excluded areas; 

(h) any sums required to satisfiy any judgment, 
decree or award of any court or arbitral tribu- 
nal; 

(t) any other expenditure declared by this Actor 
any Act of the Federal Legislature to be so 
charged. 

( 4 ) Any question whether any proposed expenditure 
falls within a class of expenditure charged on the revenues 
of the Federation shall be decided by the Governor-General 
in his discretion. 

34. Procedure In Legislature with respect to esti^ 

mates:~( I ) So much of the estimates of expenditure as 
relates to expenditure charged upon the revenues of the 
Federation shall not be submitted to the vote of the Legis- 
lature, but nothing in this subsection shall be construed 
as preventing the discussion in either Chamber of the 
Legislature of any of those estimates other than estimates 
relating to expenditure referre I to in paragraph (a) or 
paragraph (/) of subsection ( 3 ) of the last preceding 
section. 

( 2 ) So much of the said estimates as relates to other 
expenditure shall be submitted in the form of demands 

149 



The Indian CoNSTixutioN Ch. Vl 

for grants to the Federal Assembly and thereafter to the 
Council of State, and either Chamber shall have power to 
assent or to refuse to assent to any demand, or to assent 
to any demand subject to a reduction of the amount 
specified therein: 

Provided that, where the Assembly have refused to 
assent to any demand, that demand shall not be submitted 
to the Council of State, unless the Governor-General so 
directs and, where the Assembly have assented to a 
demand subject to a reduction of the amount specified there- 
in, a demand for the reduced amount only shall be sub- 
mitted to Councial of State, unless the Governor-General 
otherwise directs; and where, in either of the said cases, such 
a direction is given, the demand submitted to the Council 
of State shall be for such amount, not being a greater 
amount than that orignally demanded, as may be specified 
in the direction. 

( 3 ) If the Chambers differ with respect to any 
demand the Governor- General shall summon the two 
Chambers to meet in a joint sitting for the purpose of 
deliberating and voting on the demand as to which they 
disagree, and the decision of the majority of the members 
of both Chambers present and voting shall be deemed to be 
the decision of the two Chambers. 

( 4 ) No demand for a grant shall be made except on 
the recommendation of the Governor-General. 

3 5. Authentication of schedule of authorised expendi"" 
ture. 

36. Supplementary statement;) of expenditure. 

150 



The Government of India Act, 1935. 

37. special provisions as to financial Bills: — (l) A Bill 

or amendment making provision — 

{a) fox imposing or increasing any tax; or 
{b) for regulating the borrowing of money or the 
giving of any guarantee by the Federal 
Government, or for amending the law with 
respect to any financial obligations under- 
taken or to be undertaken by the Federal 
Government; or 

(c) for declaring any expenditure to be expenditure 
charged on the revenues of the Federation, or 
for increasing the amount of any such expen- 
diture, 

shall not be introduced or moved except on the recom- 
mendation of the Governor-General, and a Bill making 
such provision shall not be introduced in the Council of State. 

(2) A Bill or amendment shall not be deemed to make 
provision for any of the purposes aforesaid by reason 
only that it provides for the imposition of fines or other 
pecuniary penalties, or for the demand or payment of 
fees for licences or fees for services rendered. 

(3) A Bil! which, if enacted and brought into 
operation, VN*ould involve expenditure from the revenues 
of the Federation shall not be passed by either Chamber 
unless the Governor-General has recommended to that 
Chamber the consideration of the Bill. 

Procedure Ge7ieraUy. 

38. Rales of procedure:— (i) Each Chaniber of the 
Federal Legislature may make rules for regulating, subject 

151 



The Indian Constitution Ch. VI 

to the provisions of this Act, their procedure and the 
conduct of their business : 

Provided that as regards each Chamber the Governor- 
General shall in his discretion, after consultation with 
the President or the Speaker, as the case may be, make 
rules — 

(a) for regulating the procedure of, and the conduct 
of business in, the Chamber in relation to any 
matter which affects the discharge of his func- 
tions in so far as he is by or under this Act 

required to act in his discretion or to exercise 
his individual judgment; 

((^) for securing the timely completion of financial 
business; 

( c) for prohibiting the discussion of, or the asking 
of questions on, any matter connected with any 
Indian State, other than a matter with respect 
to which the Federal Legislature has power to 
make laws for that State, unless the Governor- 
General in his discretion is satisfied that the 
matter affects Federal interests or affects a 
British subject, and has given his consent to the 
matter being discussed or the question being 
asked; 

(d) for prohibiting, save with the consent of the 
Governor-General in his discretion, — 

( i ) the discussion of, or the asking of 
questions on, any matter connected with re- 
lations between His Majesty or the Governor- 
General and any foreign State or Prince; or 

152 



The Government of India Act, 1935. 

(ii) the discussion, except in relation to 
estimates of expenditure, of, or the asking 
of questions on, any matter connected with 
the tribal areas or the administration of any 
excluded area; or 

(iii) the discussion of, or the asking of 
questions on, any action taken in his dis- 
cretion by the Governor-General in relation 
to the aflairs of a Province; or 

(iv) the discussion of, or the asking of 
questions on, the personal conduct of the 
Ruler of any Indian State, or of a member 
of the ruling famil}' thereof; 

and, if and in so far as any rule so made by the Governor- 
General is inconsistent with any rule made by a Chamber, 
the rule made by the Governor-General shall prevail. 

(2) The Governor- General, after consultation with 
the President of the Council of State and the Speaker of 
the Legislative Assembly, may make rules as to (he pro- 
cedure with respect to joint sittings of, and communica- 
tions between, the two Chambers. 

The said rules shall make such provision for the 
purposes specified in the proviso to the preceding sub- 
section as the Governor-General in his discretion may 
think fit. 

( 3 ) Until rules are made under this section, the 
rules of procedure and standing orders in force immediately 
before the establishment of the Federation with respect to 
the Indian Legislature shall have effact in relation to the 

C.L,2Q X53 



The Indian Constitution Ch. VI 

Federal Legislature subject to such modifications and 
adaptations as may be made therein by the Governor- 
General in his discretion. 

(4) At a joint sitting of the two Chambers the 
President of the Council of State, or in his absence such 
person as may be determined by rules of procedure made 
under this section, shall preside. 

Notes: — The fourth proviso in Subsection ( 1 ) ( d ) is 
new, when compared to the Bill. 

3 9. English to be used in the Federal Legislature. 

4 0. Restrictions on discussion in the Legislature. 

4 1. Courts not to inquire into proceedings of the 

Legislature — ( i ) The validity of any proceedings in the 

Federal Legislature shall not be called in question on the 
ground of any alleged irregularity of procedure. 

( 2 ) No officer or other member of the Legislature 
in whom powers are vested by or under this Act for regu- 
lating procedure or the conduct of business, or for main- 
taining order, in the Legislature shall be subject to the 
jurisdiction of any court in respect of the exercise by him 
of those pov/ers. 

CHAPTER IV. 

Legislative Powers of Governor-General. 

4 2, Power of Qovcrnor=Qeneral to promulgate Ordi- 
nances during recess of Legislature: — ( i ) If at any time 
when the Federal Legislature is not in session the Governor- 
General is satisfied that circumstances exist which render 



IH 



The Government of India Act, 1935. 

it necessary for him to take immediate action, he may 
promulgate such ordinances as the circumstances appear 
to him to require: 

Provided that the Governor-General — 

( a) shall exercise his individual judgment as re- 
spects the promulgation of any ordinance under 
this section if a Bill containing the same provi- 
sions would under this Act have required his 
previous sanction to the introduction thereof 
into the Legislature; and 

(d) shall not, without instructions from His Majesty 
promulgate any such ordinance if he would 
have deemed it necessary to reserv^e a Bill 
containing the same provisions for the signi- 
fication of His Majesty's pleasure thereon. 

( 2 ) An ordinance promulgated under this section 
shall have the same force and effect as an Act of the 
Federal Legislature assented to by the Governor-General, 
but every such ordinance— 

( a ) shall be laid before the Federal Legislature and 
shall cease to operate at the expiration of six 
weeks from the re-assembly of the Legislature, 
or, if before the expiration of that period 
resolutions disapproving it are passed by both 
Chambers, upon the passing of the second of 
those resolutions; *' 

{b) shall be subject to the provisions of this Act 
relating to the power of His Majesty to dis- 
allow Acts as if it were an Act of the Federal 



155 



tHE Indian Constitution Ch. VI 

Legislature assented to by the Governor- 
General; and 

(c) may be withdrawn at any time by the Gover- 
nor-General. 

(3) If and so far as an ordinance under this section 
makes any provision which the Federal Legislature would 
not under this Act be competent to enact, it shall be 
void. 

Notes : — The following Bills should be reserved for the 
signification of His Majesty's pleasure: — 

{a) any Bill the provisions of which would repeal or be 
repugnant to the provisions of any Act of Parliament 
extending to British India; 

{b ) any Bill which would, if it became law so derogate 
from the powers of the High Court of any Province 
as to endanger the position which these Courts are 
by the said Act designed to fill; 

(c) any Bill passed by a Provincial Legislature and 
reserved for his consideration which vpould alter the 
character of the Permanent Settlement; 

{<^) any Bill regarding which doubt may be felt by the 
Governor-General whether it does or does not offend 
against the purposes of Chap III, Part V of the 
Government of India Act (re. provisions against 
discrimination). Vide draft Instrument of Instruc- 
tions to the G-G. 

4 3. Power of Qovernor=Qeneral to promulgate ordi- 
nances at any time witii respect to certain subjects:— (1) 

If at any time the Governor-General is satisfied that circum- 
stances exist which render it necessary for him to take 

156 



The Government of India Act, 1935. 

immediate action for the purpose of enabling him satisfac- 
torily to discharge his functions in so far as he is by or 
under this Act required in the exercise thereof to act in his 
discretion or to exercise his individual judgment, he may 
promulgate such ordinances as in his opinion the circum- 
stances of the case require. 

(2) An ordinance promulgated under this section shall 
continue in operation for such period not exceeding six 
months as may be specified therein, but may by a subse- 
quent ordinance be extended for a further period not 
exceeding six months. 

(3) An ordinance promulgated under this section shall 
have the same force and effect as an Act of the Federal 
Legislature assented to by the Governor-General, but every 
such ordinance— 

{a) shall be subject to the provisions of this Act 
relating to the power of His Majesty to disallow 
Acts as if it were an Act of the Federal Leds- 
lature assented to by the Governor-General; 

{b) may be withdrawn at any time by the Cover* 
nor-General; and 

{c) if it is an ordinance extending a previous ordin- 
ance for a further period, shall be communi- 
cated forthwith to the Secretary of State and 
shall be laid by him before each House of 
Parliament. 

(4) If and so far as an ordinance under this section 
makes any provision which the Federal Legislature would 
not under this Act be competent to enact, it shall be 
void, 



157 



The Indian Constitution Ch. Vi 

(5) The functions of the Governor-General under this 
section shall be exercised by him in his discretion. 

4 4. Power of Qovernor-General in certain circunio 
stances to enact Acts:— (r) If at any time it appears to the 
Governor-General that, for the purpose of enabling him 
satisfactorily to discharge his functions in so far as he is by 
or under this Act required in the exercise thereof to act in 
his discretion or to exercise his individual judgment, it is 
essential that provision should be made by legislation, he 
may by message to both Chambers of the Legislature 
explain the circumstances which in his opinion render 
legislation essential, and either — 

(a) enact forthwith, as a Governor-General's Act, a 
Bill containing such provisions as he considers 
necessary; or 

(b) attach to his message a draft of the Bill which 
he considers necessary. 

(2) Where the Governor-General takes such action as 
is mentioned in paragraph {b) of the preceding subsection, 
he may at any time after the expiration of one month 
enact, as a Governor-General's Act, the Bill proposed by 
him to the Chambers either in the form of the draft com- 
municated to them or with such amendments as he deems 
necessary, but before so doing he shall consider any address 
which may have been presented to him within the said 
period by either Chamber with reference to the Bill or to 
amendments suggested to be made therein. 

(3) A Governor General's Act shall have the same 
force and effect, and shall be subject to disallowance in 

158 



The Government of India Act, 1935. 

the same manner, as an Act of the Federal Legislature 
assented to by the Governor-General and, if and in so far 
as a Governor-General's Act makes any provision M-hich 
the Federal Legislature would not under this Act be com- 
petent to enact, it shall be void. 

(4) Every Governor-General's Act shall be communi- 
cated forthwith to the Secretary of State and shall be laid 
by him before each House of Parliament. 

(5) The functions of the Governor-General under this 
section shall be exercised by him in his discretion 

Note;- Subsection ( 1 ) ( a ) is new (not in the Bill.) 

CHAPTER V. 

Provisions in cage of Failure of Constitutional Machinery. 

4 5. Power of Qovernor-Qeneral to issue Proclam- 
ations: — (i) If at any time the Governor-General is satisfied 
that a situation ha? arisen in which the government 
of the Federation cannot be carried on in accordance with 
the provisions of this Act, he may by Proclamation — 

(a) declare that his functions shall to such extent as 
may be specified in the Proclamation be exer- 
cised by him in his discretion; 

(b) assume to himself, all or any of the powers 
vested in or exercisable by any Federal body or 
authority, 

and any such Proclamation may contain such incidental and 
consequential provisions as may appear to him to be nece- 
ssary or desirable for giving effdct to the objects of the 
Proclamation, including provisions for suspending in whole 
or in part the oparation of any provisions of this Act relating 
to any Federal body or authority: 

109 



The Indian Constitution Ch. VI 

Provided that nothing in tliis subsection shall autho- 
rise the Governor-General to assume to himself any of the 
powers vested in or exercisable by the Federal Court or to 
suspend, either in whole or in part, the operation of any 
provision of this Act relating to the Federal Court. 

( 2 ) Any such Proclamation may be revoked or varied 
by a subsequent Proclamation. 

( 3 ) A Proclamation issued under this section — 

(a) shall be communicated forthwith to the Secre- 
tary' of State and shall be laid by him before 
each House of Parliament; 

(b) unless it is a Proclamation revoking a previous 
Proclamition, shall cease to :)perate at the expi- 
ration of six months: 

Provided that, if and so often as a resolution approv- 
ing the continuance in force of such a Proclamation is 
passed by both Houses of Parliament, the Proclamation 
shall, unless revoked, continue in force for a further period 
of twelve months from the date on which under this sub- 
section it would otherwise have ceased to operate. 

( 4 ) If at any time the government of the Federation 
has for a continuous period of three years been carried on 
under and by virtue of a Proclamation issued under this 
section, then, at the expiration of that period, the Procla- 
mation shall cease to have effect and the government of 
the Federation shall be carried on in accordance with the 
other provisions of this Act, subject to any amendment 
thereof which Parliament may deem it necessary to make, 
but nothing in this subsection shall be construed as extend- 
ing the power of Parliament to make amendments in this 
Act without affecting the accession of a State. 

160 



The Government of India Act, 1935. 

( 5 ) If the Governor-General, by a Proclamation 
under this section, assumes to himself any power of the 
Federal Legislature to make laws, any law made by him in 
the exercise of that power shall, subject to the terms there- 
of, continue to have effect until two years have elapsed 
from the date on which the Proclamation ceases to have 
effect, unless sooner repealed or re-enacted by Act of the 
appropriate Legislature, and any reference in this Act to 
Federal Acts, Federal laws, or Acts or laws of the Federal 
Legislature shall be construed as including a reference to 
such a law. 

( 6 ) The functions of the Governor-General under 
this section shall be exercised by him in his discretion. 

Subsectioii { i) and ( 5 ) are new. The Hydari Committee 
Report dated the 2l3t February 1935 stated:— "While the 
States are willing to accede to the Federation for the purpose 
of obtaining a Constitution giving responsible Government at 
the Centre, it is not obviously intended that if such responsi- 
bility has become impossible of attainment, the powers handed 
over by the Federated States should still be subtracted from 
them. " Their Highnesses' Note stated; — " It was understood 
that in the event of a breakdown of the Federal Constitution 
or an amendment without the consent of the States, beyond 
such minor changes in respect of which previous consultation 
may not be necessary by agreement, the trust would be deter- 
mined and the powers transferred would revert to States." 
" Regarding the break-down, Sir Samuel Hoare wrote: — " His 
Majesty's Government, however, see no objection to meeting 
any apprehensions that may be felt about this clause by in- 
serting a time-limit on its operation. " Subsection 4 was 
accordingly inserted. 



C,L.2I X61 



Chapter VII 

THE GOVERNMENT OF INDIA ACT, 193 5. (Contd ). 

PART III. 

*THE GOVERNORS' PROVINCES, 

CHAPTER I. 

The Provinces. 

4 6 Governors* Provinces: — (i) Subject to the provi- 
sions of the next succeeding section with respect to Berar, 
the following shall be Governors' Provinces, that is to say, 
Madras, Bombay, Bengal, the Unitea Provinces, the Punjab, 
Bihar, the Central Provinces and Berar, Assam, the North- 
West Frontier Province, Orissa, Sind, and such other 
Governors' Provinces as may be created under this Act. 

4 7. Provisions as to Berar. 

CHAPTER II, 

The Provincial Executive. 

The Governor. 

4 8. Appointment of Qovernor:~(i) The Govarnor 
of a Province is appointed by His Majesty by a Commission 
under the Royal Sign Manual. 



*NoTE. — The sections relating to the Provincial Executive, 
Legislatures, Legislative Procedure, provision in case of failure 
cf constitutional machinery etc. are practically similar to the 
corresponding sections noted above dealing with the respective 
subjects under Part II "Federation of India." 



162 



The Government of India Act, 1935. (Contd.) 
49, Executive authority of Province- 

Administration of Provincial Affairs. 

5 0. Council of ministers. 

5 1 . Other provisions as to ministers. 

52, Special responsibilities of Qovernor.--(i) In the 

exercise oi his functions the Governor shall have the 
folio vving special responsibilities, that is to say: — 

{a) the prevention of any grave menace to the 
peace or tranquillity of the Province or any part 
thereof; 

{b) the safeguarding of the legitimate interests of 
minorities; 

(<:) the securing to, and to the dependants of, 
persons who are or have been members of the 
public services of any rights provided or 
preserved for them by or under this Act, and 
the safeguarding of their legitimate interests; 

{d) the securing in the sphere of executive action 
of the purposes which the provisions of chapter 
III of Pari V of this Act are designed to secure 
in relation to legislation; 

{e) the securing of the peace and good government 
of c.reas which by or under the provisions of 
this: Part cf this Act are declared to be partially 
excluded f.reas; 

(/) th3 prote^ition of the rights of any Indian State 
and the rights and dignity of the Ruler thereof; 
and 



163 



The Indian Constitution Ch. Vll 

(g) the securing of the execution of orders or direc- 
tions lawfully issued to him under Part VI of 
this Act by the Governor-General in his 
discretion. 

5 3. Provisions as to Instrument of Instructions. 

54. Superintendence of QovernoroQeneral. 

5 5. Advocate>Qeneral for Province- 

5 6. Provisions as to police rules:— Where it is pro- 
posed that the Governor of a Province should by virtue 
of any powers vested in him make or amend, or approve 
the making or amendment of, any rules, regulations or 
orders relating to any police force, whether civil or military, 
he shall exercise his individual judgment Mn"th respect to 
the proposal, unless it appears to him that the proposal 
does not relate to or affect the organisation or discipline 
of that force. 

B7. Provisions as to crimes of violence intended to 
overthrow Government: — (i) If it appears to the Governor of 
a Province that the peace or tranquillity of the Province 
is endangered by the operations of any persons committing, 
or conspiring, preparing or attempting to commit, crimes 
of violence which, in the opinion of the Governor, are inten- 
ded to overthrow the government as by law established, 
the Governor may, if he thinks that the circumstances of 
the case require him so to do for the purpose of combating 
those operations, direct that his functions shall, to such 
extent as may be specified in the direction, be exercised 
by him in his discretion and, until otherwise provided by 

164 



tHfi Government of India Act, 1955. (Contd.) 

a subsequent direction of the Governor, those functions 
shall to that extent be exercised by him accordingly. 

(2) While any such direction is in force, the Governor 
may authorise an official to speak in and otherwise take 
part in the proceedings of the Legislature, and any official 
so authorised may speak and take part accordingly in the 
proceedings of the Chamber or Chambers of the Legislature, 
any joint sitting of the Chambers, and any committee of 
the Legislature of which ho may be named a member by 
the Governor, but shall not be entitled to vote. 

(3) The functions of the Governor under this section 
shall be exercised by him in his discretion. 

(4) Nothing in this section affects the special res- 
ponsibility of the Governor for the prevention of any grave 
menace to the peace or tranquillity of the Province or any 
part thereof. 

5 8. Sources of certain information not to be disclosed— 

The Governor in his discretion shall make rules for securing 
that no records or information relating to the sources from 
which information has been or may be obtained with 
respect to the operations of persons committing, or conspi- 
ring, preparing, or attempting to commit, such crimes as 
are mentioned in the last preceding section, shall be dis- 
closed or given — 

( a ) by any member of any police force in the 
Province to another member of that force 
except in accordance with directions of the 
Inspector-General of Police or Commissioner 
of Police, as the case may be, or to any other 

165 



The Indian CoNSTiTutioN Ch. Vll 

person except in accordance with directions of 
the Governor in his discretion; or 

( * ) by any other person in the service of the Crown 
in the Province to any person except in accor- 
dance with directions of the Governor in his 
discretion. 

5 9. Conduct of business of Provincial Qovernment. 

CHAPTER HI, 

The Provincial Legislature. 

Ge7ieral. 

60 Constitution of Provincial Legislatures: — (i) 

There shall for every Province be a Provincial Legislature 
which shall consist of His Majesty, represented by the 
Governor, and — 

( a ) in the Provinces of Madras, Bombay, Bengal, 
the United Provinces, Bihar and Assam, two 
Chambers; 

( ^ ) in other Provinces, one Chamber. 

( 2 ) Where there are two Chambers of a Provincial 
Legislature, they shall be known respectively as the 
Legislative Council and the Legislative Assembly, and 
where there is only one Chamber, the Chamber shall be 
known as the Legislative Assembly. 

Notes;— The J. P. C. Keport stated:— "It is also proposed 
that after a period of ten years, a bicameral Legislature may 
abolish its Legislative Council, and that a unicameral Legisla- 
ture may present an address to the Crown praying for the 
establishment of a Legislative Council. 

166 



The Government of India Act, 1935. (Contd.) 

6 1. Composition of Chambers of Provincial Legis- 
latures. 

62. Sessions of the Legislature, prorogation and dis* 
solution. 

6 3. Right of Qovernor to address, and send messages 
to, Chambers. 

6 4. Rights of ministers and Advocate^Qeneral as 
respects Chambers. 

6 5. Officers of Chambers 

6 6- Voting in Chambers, power of Chambers to act 
notwithstanding vacancies, and quorum. 

Provisiofis as to Members of Legislatures, 
6 7. Oath of members. 

6 8. Vacation of seats:— ( I ) No person shall be a 
member of both Chambers of a Provincial Legislature, and 
rules made by the Governor exercising his individual judg- 
ment shall provide for the vacation by a person who is 
chosen a member of both Chambers of his seat in one 
Chamber or the other. 

( 2 ) No person shall be a member both of the Federal 
Legislature and of a Provincial Legislature and if a person 
is chosen a member both of the Federal Legislature and 
of a Provincial Legislature, then, at the expiration of such 
period as may be specified in rules made by the Governor 
of the Province exercising his individual judgment, that 
person's seat in the Provincial Legislature shall become 
vacant, unless he has previously resigned his seat in the 
Federal Legislature. 

69. Disqualifications for membership. 

167 



The Indian Constitution Ch. VII 

70. Penalty for sitting and voting when not quaiitied, 
or when disqualified. 

71. Privileges, &c. of members. 

72. Salaries and allowances of members. 

Legislative Procedure. 

7 3. Introduction of Bills, &c. 

74. Passing of Bills in Provinces having Legislative 
Councils. 

7 5. Assent to Bills. 

76. Bills reserved for consideration. 

7 7. Power of Crown to disallow Acts. 

Procedure in Financial ?natters. 

7 8. Annual financial statement. 

7 9. Procedure in Legislature with respect to estimates. 

80. Authentication of schedule of authorised expen- 
diture. 

8 1 . Supplementary statements of expenditure. 

82. Special provisions as to financial Bills. 

8 3. Provisions with respect to certain educational 
grants. 

Procedure generally, 

84, Rules of procedure. 

8 5, English to be used In Provincial Legislatures. 

86. Restrictions on discussion in the Legislature. 

8 7. Courts not to inquire into proceedings of the 
Legislature- 

1^8 



The Government of India Act, 1935. (Contd.) 

CHAPTER IV. 
Legislative Powers of Goveroor. 

8 8- Power of QoverBor to promulgate ordinances 
during recess of Legislature. 

89. Power of Governor to promulgate ordinances at 
any time with respect to certain subjects. 

90. Power of Governor in certain circumstances to 
enact Acts. 

CHAPTER V. 

Excluded Areas and Partially Excluded Areas. 

9 1. Excluded areas and partially excluded areas: — 

( I ) In this Act the expressions " excluded area " and 
'* partially excluded area " mean respectively such areas as 
His Majesty may by Order in Council declare to be exclu- 
ded areas or partially excluded areas. 

The Secretary of State shall lay the draft of the Order 
which it is proposed to recommend His Majest)' to make 
under this subsection before Parliament within six months 
from the passing of this Act. 

( 2 ) His Majesty may at any time by Order in 
Council — 

(a) direct that the whole or any specified part of an 
excluded area shall become, or become part of, 
a partially excluded area; 

(b) direct that the whole or any specified part of a 
partially excluded area shall cease to be a 

C,L. 22 169 



The Indian Constitution Ch. VII 

partially excluded area or a part of such an 
area; 

(c) alter, but only by way of rectification of boun- 
daries, any excluded or partially excluded 
area; 

(d) on any alteration of the boundaries of a Pro- 
vince, or the creation of a new Province, 
declare any territory not previously included 
in any Province to be, or to form part of, an 
excluded area or a partially excluded area, 

and any such Order may contain such incidental and 
consequential provisions as appear to His Majesty to 
be necessary and proper, but save as aforesaid the Order 
in Council made under subsection (i) of this section shall 
not be varied by any subsequent Order. 

92. Administration of excluded areas and partially 
excluded areas. 

CHAPTER VI, 
Provisions in case of Failure of Constitutional Machinery. 

9 3. Power of Governor to issue Proclamations. 

PART IV. 
THE CHIEF COMMISSIONERS' PROVINCES. 

9 4. Chief Commissioners' Provinces'. — (O The 

following shall be the Chief Commissioners' Provinces, that 
is to say, the heretofore existing Chief Commissioners' 
Provinces of British Baluchistan, Delhi, Ajmer-Merwara, 
Coorg and the Andaman and Nicobar Islands, the area 

170 



The Government of India Act, 1935. (Contd,) 

known as Panth Piploda, and such other Chief Commis- 
sioners' Provinces as may be created under this Act. 

( 2 ) Aden shall cease to be part of India. 

( 3 ) A Chief Commissioner's Province shall be admi- 
nistered by the Governor-General acting, to such extent as 
he thinks fit, through a Chief Commissioner to be appointed 
by him in his discretion. 

9 5, British Baluchistan. 

96. The Andaman and Nicobar Islands. 

9 7. Coorg. 

9 8. Provisions as to police rules &c. and as to crimes 
of violence intended to overthrow the Qovernment. 

PART V 

LEGISLATIVE POWERS. 

CHAPTER I. 
Distribution of Powers- 

9 9. Extent of Federal and Provincial laws: — (l) 

Subject to the provisions of this Act, the Federal Legis- 
lature may make laws for the whole or any part of British 
India or for any Federated State, and a Provincial Legislature 
may make laws for the Province or for any part thereof. 

( 2 ) Without prejudice to the generality of the powers 
conferred by the preceding subsection, no Federal law shall, 
on the ground that it would have extra territorial operation, 
be deemed to be invalid in so far as it applies — \ 

(a) to British subjects and servants of the Crown 
in any part of India; or 

171 



The Indian Constitution Ch. Vll 

( ^ ) to British subjects who are domiciled in any 
part of India wherever they may be; or 

(c) to, or to persons on, ships or aircraft registered 
in British India or any Federated State 
wdierever they may be; or 

(d) in the case of a law with respect to a matter 
accepted in the Instrument of Accession of a 
Federated State as a matter with respect to 
which the Federal Legislature may make laws 
for that State, to subjects of that State wherever 
they may be; or 

(e) in the case of a law for the regulation or disci- 
pline of any navi^l, military, or air force raised 
in British India, to members of, and persons 
attached to, employed with or following, that 
force, wherever they may be. 

Notes : — " The effect of a Federal Act upon a British 
subject in a State, if the Act relates to a matter in respect to 
which the State had not federated, would not, by virtue of the 
Act, impose any duty on the S-tate." 

100. Subject metier of Federal and Provincial laws: — 

( I ) Notwithstanding anything in the two next succeeding 
subsections, the Federal Legislature has, and a Provincial 
Legislature has not, powder to make laws with respect to 
any of the matters enumerated in List I in the Seventh 
Schedule to this Act ( hereinafter called the " Federal Legis- 
lative List" ). 

(2) Notwithstanding anything in the next succeeding 
subsection, the Federal Legislature, and, subject to the 
preceding subsection, a Proviijcial Legislature also, have 

172 



The Government of India Act, 1935. (Contd.) 

power to miike laws with respect to any of the matters 
enumerated in List III in the said Schedule ( hereinaj'ter 
called the " Concurrent Legislative List" ). 

(3) Subject to the two preceding subsections, the 
Provincial Legislature has, and the Federal Legislature has 
not, power to make laws for a Province or any part tliereof 
with respect to any of tlie matters enumerated in List II 
in the said Schedule ( here-iujifter called the 'Proviu-.ial 
Legislative List" ). 

(4) The Federal Legislature has power to make l;- ws 
with respect to matters enumerated in the Provincial Le ;is- 
lative List except for a Province or any part thereof. 

101. Extent of power to legislate for States: — Noth- 
ing in this Act shall be construed as empowering the 
Federal Legislature to make laws for a Federated SLite 
otherwise than in accordance with the Instrument of 
Accession of that State and any limitations contained therein. 

102. Power of Federal Legislature to legislate R an 
emergency is proclaimed: — (r) Notwithstanding anythiiir in 
the preceding sections of this chapter, the Federal Legislature 
shall, if the Governor-GeneraJ has in his discretion declared 
by Proclamation ( in this A«t referred to as a " Proclama- 
tion of Emergency " ) that a grave emergency exists whore- 
by the security of India is threatened, whether by war or 
internal disturbance, have poN^'^r to make laws for a I'ro- 
vince or any part thereof with respect to any of the matters 
enumerated in the Provincial Legislative List: 

Provided that no Bill or amendment for the purposes 
aforesaid shall be introduced or moved without the pre- 

173 



The Indian Constitution Ch. Vll 

vious sanction of the Governor- General in his discretion, 
and the Governor-General shall not give his sanction 
unless it appears to him that the provision proposed to be 
made is a proper provision in view of the nature of the 
emergency. 

(2) Nothing in this section shall restrict the power of 
a Provincial Legislature to make any law which under this 
Act it has power to make, but if any provision of a Provincial 
law is repugnant to any provision of a Federal law which 
the Federal Legislature has under this section power to 
make, the Federal law, whether passed before or after the 
Provincial law, shall prevail, and the Provincial law shall 
to the extent of the repugnancy, but so long only as the 
Federal law continues to have effect, be void. 

(3) A Proclamation of Emergency — 

(a) may be revoked by a subsequent Proclamation; 

{b) shall be communicated forthwith to the Secre- 
tary of State and shall be laid by him before 
each House of Parliament; and 

(c) shall cease to operate at the expiration of six 
months, unless before the expiration of that 
period it has been approved by resolutions of 
both Houses of Parliament. 

(4) A law made by the Federal Legislature which 
that Legislature would not but for the issue of a Proclama- 
tion of Emergency have been competent to make shall 
cease to have effect on the .expiration of a period of six 
months after the Proclamation has ceased to operate, except 
as respects things done or omitted to be done before the 
expiration of the said period. 

174 



The Government oe India A.ct, 1935. (Contd.) 

103. Power of Federal Legislature to legislate for two 
or more Provinces by consent. 

104. Residual powers of legislation:— (i) The Gov- 
ernor-General may by public notification empower either 
the Federal Legislature or a Provincial Legislature to enact 
a law with respect to any matter not enumerated in any of 
the Lists in the Seventh Schedule to this Act, including a 
law imposing a tax not mentioned in any such list, and the 
executive authority of the Federation or of the Province, 
as the case may be, shall extend to the administration of 
any law so made, unless the Governor-General otherwise 
directs. 

(2) In the discharge of his functions under this sec- 
tion the Governor-General shall act in his discretion. 

10 5. Application of Naval Discipline Act to Indian 
naval forces. 

10 6. Provisions as to legislation for giving effect to 
international agreements.— (i) The Federal Legislature 
shall not by reason only of the entry in the Federal Legis- 
lative List relating to the implementing of treaties and 
agreements with other countries have power to make any 
law for any Province except with the previous consent of 
the Governor, or for a Federated State except with the 
previous consent of the Rulei thereof. 

(2) So much of any law as is valid only by virtus of 
any such entry as aforesaid may be repealed by the 
Federal Legislature and may, on the treaty or agreement 
in question ceasing to have effect, be repealed as respects 
any Province 01 State by a law of that Province or State, 



The Indian Constitution Cn. VII 

(3) Nothing in this section applies in relation to any 
lav; which the Federal Legislature has power to make for 
a Frovince or, as the case may be, a Federated State, by 
virLue of any other entry in the Federal or the Concurrent 
Legislative List as well as by virtue of the said entry. 

107. inconsistency between Federal laws and Pro- 
vif cial, or State, laws.— (1) l^ any provision of a Provincial 
la\-:' is repugnant to any provision of a Federal law which 
the Federal Legislature is competent to enact or to any 
provision of an existing Indian law with respect to one of 
tho matters enumerated in the Concurrent Legislative List, 
thon, subject to the provisions of this section, the Federal 
law, whether passed before or after the Provincial law, or, 
as the case may be, the existing Indian law", shall prevail 
and the Provincial law shall, to the extent of the repug- 
nancy, be void. 

(2) Where a Provincial law with respect to one of 
th»3 matters enumerated in the Concurrent Legislative List 
ccatains any provision repugnant to the provisions of an 
earlier Federal law or an existing Indian law with respect 
to that matter, then, if tlie Provincial law, having been 
rofcerved for the consideration of the Governor-General 
or for the signification a£ His Majesty's pleasure, has 
received the assent of the Governor-General or of His 
Majesty, the Provincial laW shall in that Province prevail, 
bit nevertheless the Federal Legislature may at any 
time enact further legislation with respect to the same 
m itter: 

Provided that no Bill or. amendment for making any 
provision repugnant to any Provincial law, which, 

17^ 



The Government of India Act, 1935. (Contd.) 

having been so reserved, has received the assent of the 
Governor- General or of His Majesty, shall be introduced 
or moved in either Chamber of the Federal Legislature 
without the previous sanction of the Governor-General in 
his discretion. 

(3) If any provision of a law of a Federated State is 
repugnant to a Federal law which extends to that State, 
the Federal law, whether passed before or after the law 
of the State, shall prevail, and the law of the State shall, 
to the extent of the repugnancy, be void. 

CHAPTER II. 

Restrictions on Legislative Powers. 

10 8. Sanction of Governor=General or Qevernor re- 
quired for certain legislative proposals: — (i) Unless the 
Governor-General in his discretion thinks fi: to give his 
previous sanction, there shall not be introduced into, or 
moved in, either Chamber of the Federal Le^^islature, any 
Bill or amendment which — 

(a) repeals, amends or is repugnant to any provi- 
sions of any Act of Parliament extending to 
British India; or 

( I) ) repeals, amends or is repugnant to any Governor- 
General's or Governor's Act, or i.ny ordinance 
prouiulgated in his discretion by the Governor- 
Gensral or a Governor; or 

(c) affects matters as respects which :he Governor- 
General is, by or under this Act, required to 
act in his discretion; or 

C.L.23 177 



The Indian Constitution Ch. VII 

( d) repeals, amends or affects any Act relating to 
any police force; or 

(^ ) affects the procedure for criminal proceedings 
in which European British subjects are con- 
cerned; or 

(/) subjects persons net resident in British India to 
greater taxation thin persons resident in British 
India or subjects L^ompanies not wholly con- 
trolled and managed in British India to greater 
taxation than companies wholly controlled and 
managed therein; or 

(^) affects the grant of relief from any Federal tax 
on income in respect of income taxed or taxable 
in the United Kingdom. 

(2) Unless the Governor-General in his discretion 
thinks fit to give his previous sanction, there shall not be 
introduced into, or moved in, a Chamber of a Provincial 
Leoislature anv Bill or amendment which — 

(rt) repeals, amends, 0; is repugnant to an)' provi- 
sions of any Act of Parliament extending to 
British India; or 

(b) repeals, amends or is repugnant to any Governor- 
General's Act, or any ordinance promulgated in 
his discretion by t!ie Governor-General; or 

(c) affects matters as respects which the Governor- 
General is by or under this Act, required to act 
in his discretion; or 

( d) aflects the procedure for criminal proceedings 
in which European British subjects are con- 
cerned; 

m 



The Government oP india Act, 1935. (ConUt.) 

and unless the Governor of th3 Province in his discretion 
thinks fit to give his previous sanction, there shall not be 
introduced or moved any Bill or amendment which — 

( i ) repeals, amends or is repugnant to any Gover- 
nor's Act, or any ordinance promulgated in his 
discretion by the Governor; or 

(ii) repeals, amends cr affects ?ny Act relating to 
any police force. 

( 3 ) Nothing in this section affects the operation of any 
other provision in this Act which requires the previous 
sanction of the Governor-General or of a Governor to the 
introduction of any Bill or the moving of any amendment. 

109. Requirements as to sanctions and recommenda- 
tions to be regarded as matter^; of procedure only. 

1 1 0. Savings. — Nothing in this Act shall be taken — 

(a) to affect the power of Parliament to legislate 
for British India, or any part thereof; or 

(^) to empower the Federal Legislature, or any 
Provincial Legislature — 

( i ) to make any law affecting the Sovereign or 
the Royal Family, or the Succession to the 
Crown, or the sovereignty, dominion or 
suzerainty of the Crown in any part of 
India, or the law of British nationality, or 
the Army Act, the Air Force Act, or the 
Xaval Discipline Act, or the law of Prize 
or Prize courts; or 



179 



The Indian Constitution Ch. VII 

( ii ) except in so far as is expressly permitted by 
any subsequent provisions of this Act, to 
make any law amending any provision of 
this Act, or any Order in Council made 
thereun der, or any rules made under this 
Act by the Secretary of State, or by the 
Governor-General or a Governor in his 
discretion, or in the exercise of his indi- 
vidual judgment; or 

(iii) except in so far as is expressly permitted 
by any subsequent provisions of this Act, 
to make an}' law derogating from any 
prerogative right of His Majesty to grant 
special leave to appeal from any court. 

CHAPTER HI. 

Provisions with respect to Discrimination, &c- 

111 British subjects domiciled in the United Kingdom. 

1 1 2. Taxation:— ( i ) No Federal or Provincial law 
which imposes any liability to taxation shall be such as 
to discriminate against British subjects domiciled in the 
United Kingdom or Burma or companies as incorporated, 
whether before or after the passing of this Act, by or under 
the laws of the United Kingdom or Burma, and any law 
passed or made in contravention of this section shall, to 
the extent of the contravention, be invalid. 

113. Companies incorporated in the United King- 
dom: — ( I ) Subject to the following provisions of this 
chapter, a company incorporated, whether before or after 
the passing of this Act, by or under the laws of the United 

180 



The Government of India Act, 1935. (Contd.) 

Kingdom, and the members of the governing body of any- 
such company and the holders of its shares, stock, debentures, 
debenture stock or bonds and its officers, agents, and servants, 
shall be deemed to comply with so much of any Federal 
or Provincial law as imposes in regard to companies carry- 
ing on or proposing to carry on business in British India 
requirements or conditions relating to or connected wilh^ 

{a) the place of incorporation of a company or the 
situation of its registered office, or the currency 
in which its capital or loan capital is expressed; 
or 

( b ) the place of birth, race, descent, language, 
religion, domicile, residence or duration of 
residence members of the governing body of a 
company, or of the holders of its shares, stock, 
debentures, debenture stock or bonds, or of its 
officers, agents or servants: 

Provided that no company or person shall by virtue 
of this section be deemed to comply with any such 
requirement or condition as aforesaid if and so long as a like 
requirement or condition is imposed by or under the law 
of the United Kingdom in regard to companies incorporated 
by or under the laws of British India and carrying on or 
proposing to carry on business in the United Kingdom. 

( 2 ) It and in so far as any total or partial exemption 
from, or preferential treatment in respect of, taxation 
imposed on companies by or under any Federal or Pro- 
vincial law depends on compliance v/ith conditions as to 
any of the matters mentioned in subsection (i) of this 
section, any company incorporated by or under the laws 

181 



The Indian Constitution Ch. Vll 

of the United Kingdom carrying on business in British 
India shall be deemed to satisfy those conditions and 
be entitled to the exemption or preferential treatment 
accordingly, so long as the taxation imposed by or under 
the laws of the United Kingdom on companies incorporated 
by or under the laws of British India and carrying on busi- 
ness in the United Kingdom does not depend on compliance 
with conditions as to any of the matters so mentioned. 

114. Companies incorporated in India- 

lis. Ships and aircraft. 

116- Subsidies for the encouragement of trade or 
Industry. 

117. Supplemental. 

I 1 8. Power to secure reciprocal treatment by conven" 
tion. 

119. Professional and technical qualifications in 
general. 

120. Medical qualifications. 

121. Officers of Indian Medical Service, &c. 

PART VI. 

ADMINISTRATIVE RELATIONS BETV/EEN FEDERATION, 
PROVINCES AND STATES. 

General. 

122. Obligation of uniis and Federation: — ( i ) The 

executive authority of every Province and Federated State 
shall be so exercised as to secure respect for the laws of 
the Federal Legislature which apply in that Province or 
State. 



\%Z 



The Government of India Act, 1935 (Contd.) 

( 2 ) The reference in subsection (i) of this section to 
laws of the Federal Legislature shall, in relation to any 
Province, include a reference to any existing Indian law 
applying in that Province. 

( 3 ) Without prejudice to any of the other provisions 
of this Part of this Act, in the exercise of the executive 
authority of the Federation in any Province or Federated 
State regard shall be had to the interests of that Province 
or State. 

Note : — Subsection (3) is an addition in the Act. 

12 3. Qovernor-Qeneral may require Governors to 
discharge certaif) functions as his agents. 

Note : — This section is an addition in the Act. 

124. Power of Fedeiation to confer powers, «S:c. on 
Provinces and States in certain cases: — ( i ) Notwith- 
standing anything in this Act, the Governor General ma}', 
with the consent of the Government of a Province or the 
Ruler of a Federated State, entrust either conditionally or 
unconditionally to that Government or Ruler, or to their res- 
pective officers, functions in relation to any matter to which 
the executive authority of the Federation extends. 

( 2 ) An Act of the Federal Legislature may, notwith- 
standing that it relates to a matter with respect to which 
a Provincial Legislature has no power to make laws, 
confer powers and impose duties upon a Province or officers 
and authorities thereof. 

( 3 ) An Act of the the Federal Legislature which 
extends to a Federated State may confer powders and impose 

183 



The Indian Constitution Ch. VII 

duties upon the State or officers and authorities thereof to 
be designated for the purpose by the Ruler. 

(4) Where by virtue of this section powers and duties 
have been conferred or imposed upon a Province or Fede- 
rated State or officers or authorities thereof, there shall be 
paid by the Federation to the Province or State such sum 
as may be agreed, or, in default of agreement, as may be 
determined by an arbitrator appointed by the Chief Justice 
of India, in respect of any extra costs of administration 
incurred by the Province or State in connection with the 
exercise of those powers and duties. 

12 5- Administration of Federal Acts in Indian States:- 

( I ) Notwithstanding anything in this Act, agreements 
may, and, if provision has been made in that behalf by the 
Instrument of Accession of the State, shall, be made between 
the Governor-General and the Ruler of a Federated State 
for the exercise by the Ruler or his officers of functions in 
relation to the administration in his State of any law of the 
Federal Legislature which applies therein. 

(2) An agreement made under this section shall 
contain provisions enabling the Governor-General in his 
discretion to satisfy himself, by inspection or otherwise, 
that the administration of the law to which the agreement 
relates is carried out in accordance with the policy of the 
Federal Government and, if he is not so satisfied, the 
Governor-General, acting in his discretion, may issue snch 
directions to the Ruler as he thinks fit. 

(3) All courts shall take judicial notice of any agree- 
ment made under this section. 



184 



The Government of India Act, 1935, (Contd.) 

126, Control of Federation over Province io certain 
cases. 

12 7. Acquisition of land for Federal purposes 

128. Duty of Ruler of a State as respects Federal sub- 
jects:— (0 The executive authority of every Federated 
State shall be so exercised as not to impede or prejudice 
the exercise of the executive authority of the Federation 
so far as it is exercisable in the State by virtue of a law of 
the Federal Legislature which applies therein. 

(2) If it appears to the Governor-General that the 
Ruler of any Federated State has in any way failed to fulfil 
his obligations under the preceding subsection, the Govern- 
or-General, acting in his discretion, may after considering 
any representations made to him by the Ruler issue such 
directions to the Ruler as he thinks fit : 

Provided that, if any question arises under this section 
as to whether the executive authority of the Federation 
is exercisable in a State with respect to any matter or as 
to the extent to which it is so exercisable, the question may, 
at the instance either of the Federation or the Ruler, be 
referred to the Federal Court for determination by that 
Court in the exercise of its original jurisdiction under this 
Act. 

Notes on Sections 124 to 128: — The Act provides th© 
follo-vring methods of Local Administration; (1) It may be 
entrusted conditionally or unconditionally to the Ruler or his 
Officers by the Governor-General with the Ruler's consent (2) An 
Act of the Federal Legislature may confer powers and impose 
duties on officers and authorities of the State to be designated 

C.L.24 18^ 



The Indian Constitution Ch. VII 

for the purpose by the Ruler. The Act may very likely proT.de, 
if necessary, for the v ithdrawal of such OflScers from the control 
of the State unless otherwise provided for (3) "Provision mar be 
made by agreement. Agreements may, and if provision has been 
made in the Instrument of Accession shall, be made between 
the G~G and the Ruler regarding administration." In such 
cases, there is a provision for inspection. Unless there U a 
high standard of administrative efficiency, local administraT.ion 
cannot generally be claimed by the States (4) The last method 
is under Section 6 (2) by which reservations of executive 
authority may be made. 

In the Princes' Note it was stated:-"Accepting the sugges- 
tion of the Joint Select Committee with regard to the Pedaral 
Court, clause 201 has provided that the Federal Court, ii: it 
requires the aid of the civil or judicial authorities in a Fode- 
rated State, shall cause a letter of request in that behalf to be 
sent to the Ruler of that State. Cannot a similar letter of 
request be also sent to the Ruler whose system of administration 
may be inadequate for the federal objects in view? If diploma- 
tic action or friendly persuasion has been known till now to 
have achieved its end, there is little justification to substitute 
in their place the sending of directions and instructions for 
the improvement of the administration of a State, even in a 
department dealing with a non-federal subject, simply becp.use 
the exercise of the executive authority of the Federation is felt 
to be impeded or prejudicially affected." 

To this, Sir Sao u el Hoare replied;— "Theprocedure which 
the Note suggests of "Letters of Request" does not appear 
suitable. That method was adopted in clause 201 in order to 
meet the special relations in which the Federal Court stands 
towards a State Hi^ h Court, which find no parallel In the 
relations of the Gcve nor-General to the Ruler of a State." - 



m 



The Government of India Act, 1935. (Contd.) 

The words "in accordance with the policy fit" in 

Section 125 (2) are additions in the Act as also 125 (3). The 

words "so far as it is there n" in Section 128 n) 

anc the proviso in 128 (2), are additions in the Act. In the 
Act, the words "or has failed to maintair a system of adminis- 
tration adequate for the purposes of an} Act of the Federal 
Loj;islature, the administration of which has been entrusted to 
him or to his officers" were used in the Bill in the correspond- 
ing clause with reference to the Ruler of a Federated Stats 
under the duty of a State as respects Federal subjects in what 
has now become law under Section 128 (2). But the Act has 
omitted the words found originally in the Bill. 

Broadcasting, 
129. Broadcasting. 

Interference with Water Supplies. 
13 0, Complaints as to interference with water supp- 



lies. 



13 1. Decision of complaints. 



132. Interference with water supplies of Chief Com» 
missioner's Province. 

133. Jurisdiction of Courts excluded. 

13 4, Ruler of State may exclude application of pro- 
visions as to water supply: — The provisioi s contained in this 
Part of this Act with respect to interference with water supp- 
lies shall not apply in relation to any Federated State the 
Ruler whereof has declared in his Instrument of Accession 
that those provisions are not to apply in relation to his 
State. 



187 



The Indian Constitution Ch. VII 

Inter-Provincial Co'Operation. 

13 5. Provisions with respect to an luter-Provinclai 
Council. 

PART VII 
FINANCE, PROPERTY, CONTRACTS AND SUITS. 

CHAPTER I. 

Finance. 

Disinbiitio7i of Revenues between the Federation 
and the Federal Units. 

13 6. Meaning of " revenues of Federation '' and " re<^ 
venues of Province." 

13 7. Certain succession duties. Stamp duties, termi- 
nal taxes and taxes on fares and freights;— Duties in respect 
of succession to property other than agricultural land, such 
stamp duties as are mentioned in the Federal Legislative 
List, terminal ta.^es on goods or passengers carried by 
railway, or air, and taxes on railway fares and freights, 
shall be levied and collected by the Federation, but the net 
proceeds in any financial year of any such duty or tax, 
except in so far as those proceeds represent proceeds attri- 
butable to Chief Commissioners' Provinces, shall not form 
part of the revenues of the Federation, but shall be assigned 
to the Provinces and to the Federated States, if any, within 
which that duty or tax is leviable in that year, and shall be 
distributed among the Provinces and those States in accor- 
dance with such principles of distribution as may be for- 
mulated by Act of the Federal Legislature: 

188 



The Government of India Act, 1935. (Contd.) 

Provided that the Federal Legislature may at any 
time increase any of the said duties or taxes by a sur- 
charge for Federal purposes and the whole proceeds of any 
such surcharge shall form part of the revenues of the Fede- 
ration. 

1 3 8. Taxes on income:-(i) Taxes on income other than 
agricultural income shall be levied and collected by the 
Federation, but a prescribed percentage of the net proceeds 
in any financial year of any such tax, except in so far as 
those proceeds represent proceeds attributable to Chief 
Commissioners' Provinces or to taxes payable in respect of 
Federal emoluments, shall not form part of the revenues 
of the Federation, but shall be assigned to the Provinces 
and to the Federated States, if any, within which that tax 
is leviable in that year, and shall be distributed among 
the Provinces and those States in such manner as may be 
prescribed: 

Provided that— 

{a) the percentage originally prescribed uuder this 
subsection shall not be increased by any subse- 
quent Order in Council; 

{b) the Federal Legislature may at any time in- 
crease the said taxes by a surcharge for Federal 
purposes and the whole proceeds of any such 
surcharge shall form part of the revenues of the 
Federation. 

(2) Notwithstanding anything in the preceding su1> 
section, the Federation may retain out of the moneys 
assigned by that subsection to Provinces and States — 

189 



The Indian CoNsxitutioN Ch. Vil 

(a) in each year of a prescribed period such sum as 
may be prescribed; and 

( ^ ) in each year of a further prescribed period a 
sum less than that retained in the preceding 
year by an amount, being the same amount in 
each year, so calculated that the sum to be 
retained in the last year of the period will be 
equal to the amount of each such annual re- 
duction: 

Provided that — 

( i ) neither of the periods originally prescribed 
shall be reduced by any subsequent Order in 
Council; 

(ii) the Governor-General in his discretion may in 
any year of the second prescribed period direct 
that the sum to be retained by the Federation 
in that year shall be the sum retained in the 
preceding year, and that the second prescribed 
period shall be correspondingly extended, but 
he shall not give any such direction except after 
consultation with such representatives of Fede- 
ral, Provincial and State interests as he may think 
desirable, nor sliall he give any such direction 
unless he is satisfied that the maintenance of 
the Federal Government requires him so to 
do. 

(3) Where an Act of the Federal Legislature imposes 
a surcharge for Federal purposes under this section, the Act 
shall provide for the payment by each Federated State in 
which taxes on income are not leviable by the Federation 

190 



The Government of India Act, 1935. (Contd.) 

of a contribution to the reveniios of the Federation assessed 
on such bapis as may be presc ribed with a view to secur- 
ing that 1he contribution sliall be the equivalent, as 
near as may be, of the net proceeds which it is estimated 
would resu't from the surcharge if it were leviable in that 
State, and llie State shall become liable to pay that con- 
tribution accordingly. 

(4) In this section-^ 

" taxes on income " does not include a corporation tax; 

" prescribed " means prescribed by His Majesty in 
Council; and 

" Federal emoluments " includes all emoluments and 
pensions payable out of the revenues of the Fede- 
ration or of the Federal Railway Authority in 
respect of which income-tax is chargeable. 

13 9. Corporation tax:— (i) Corporation tax shall 
not be levied by the Federation in any Federated State until 
ten years have elapsed from the establishment of the 
Federation. 

( 2 ) Any Federal law providing for the levying of 
corporation tax shall contain provisions enabling the Ruler 
of any Federated State in which the tax would otherwise 
be leviable to elect that the tax shall not be levied in the 
State, but that in lieu thereof there shall be paid by the 
State to the revenues of the Federation a contribution as 
near as may be equivalent to the net proceeds which it is 
estimated would result from the tax if it were levied in 
the State. 



191 



The Indian Constitution Ch. VII 

( 3 ) Where the Ruler of a State so elects as aforesaid, 
the officers of the Federation shall not call for any infor- 
mation or returns from any corporation in the State, but 
it shall be the duty of the Ruler thereof to cause to be 
supplied to the Auditor-General of India such information 
as the Auditor-General may reasonably require to enable 
the amount of any such contribution to be determined. 

If the Ruler of a State is dissatisfied with the determi- 
nation as to the amount of the contribution payable by 
his State in any financial year, he may appeal to the 
Federal Court, and if he establishes to the satisfaction of 
that Court that the amount determined is excessive, the 
Court shall reduce the amount accordingly and no appeal 
shall lie from the decision of the Court on the appeal. 

14 0. 5alt duties, excise duties and export duties: — (t) 

Duties on salt, Federal duties of excise and export duties 
shall ba levied and collected by the Federation, but, if an 
Act of theFederal Legislature so provides, there shall be paid 
out of the reveneus of the Federation to the Provinces and 
to the Federated States, if any, to which the Act imposing 
the duty extends, sums equivalent to the whole or any part 
of the net proceeds of that duty, and those sums shall be 
distributed among the Provinces and those States in accord- 
ance with such principles of distribution as may be formu- 
lated by the Act. 

( 2 ) Nothwithstanding anything in the preceding sub- 
section, one-half, or such greater proportion as His Majesty 
in Council may determine, of the net proceeds in each year 
of any export duty on jute or jute products shall not form 
part of the revenues of the Federation, but shall be assigned 

in 



The Government of India Act, 1935. (Contd.) 

to the Provinces or Federated States in which jute is grown 
in proportion to the respective amounts of jute grown 
therein. 

14 K Prior sanction of Qovernor=QeneraI required to 
Bills affecting taxation in which Provinces are interested^ — 

(i) No Bill or amendment which imposes or varies any tax 
or duty in which Provinces are interested, or which varies 
the meaning of the expression " agricultural income " as 
defined for the purposes of the enactments relating to Indian 
income tax, or which affects the principles on which under 
any of the foregoing provisions of this chapter moneys are 
or may be distributable to Provinces or States, or which 
imposes any such federal surcharge as is mentioned in the 
foregoing provisions of this chapter, shall be introduced or 
moved in either Chamber of the Federal Legislature except 
with the previous sanction of the Governor-General in his 
discretion. 

(2) The Governor-General shall not give his sanction 
to the introduction of any Bill or the moving of any amend- 
ment imposing in any year any such Federal surcharge 
as aforesaid unless he is satisfied that all practicable 
economies and all practicable measures for otherwise in- 
creasing the proceeds of Fe.leral taxation or the portion 
thereof retainable by the Federation would not result in the 
balancing of Federal receipts and expenditure on revenue 
account in that year, 

14 2. Grants from Federation to certain Provinces, 

14 3. Savings. 

14 4. Calculation of "net proceeds", &c. 

Notes on Sections 136-144 : — The Ministers' Committee 
Report stated, "The Committee realise that the general and 

CL. 25 193 



The Indian Constitution Ch. VII 

fundamental condition of a balanced budget in the case of the 
Central and Provincial Governments cannot be specifically en- 
acted in the Statute, liut they wish to urge with emphasis that 
the other two conditions precedent to the adhesion of the States 
to the financial scheme already specified should be so incorpo- 
rated Some States like Kashmir, Bhopal and Indore 

have definitely declined to accept the liability to pay the corpo- 
ration tax or an equivalent." 

The Princes' Note stated, "The Princes have, for instance, 
from the very outset set their face against any direct tax, and 
have only agreed to be suVijeetcd to certain modes of indirect 

taxation as their contribution to tlio Federal fisc 

The Bill ought to make clear distinction between ordinary 
financial stress and emergencies like wars or years of continu- 
ous and chronic financial deficits. To meet the former occasion 
no State ought to be called on to pay any surcharge or surplus 
taxes or cash contributions of any kind, Such occasions of 
stress ought to be bridged over liy temporary adjustments and 
stringent retrenchment of expenditure." 

As regards emergency, the States' Delegation had stated, 
" Jf at any time even during the period of the first 10 years 
the financial position becomes such that the Federal expenditure 
cannot be met from the sources of revenues permissible to the 
Federal Government after all possible economies had been 
effected and the sources of indirect taxation open to the 
Federation exhausted, and the return of income-tax to the 
Provinces suspended, a state of emergency will be held to have 
come into being, when all Federal units will make contributions 
to the Federal fisc on an equitable and prescribed basis." 

The Princes' iiote stated, " The States would prefer to 
have cash contributions left to the free volition of the States. 
Such voluntary aid from Indian Rulers has not failed in the 

194 



The Government of India Act, 1935. (Contd.) 

pist during wars and other occasions of service tu the Empire. 
If, hort-ever, such voluntary contributions are held to be 
insuthcient for the safety of financial forecasts, the Princes 
would prefer enhancement in the incidence of permissible taxes 
as, for instance excise duties on articles like sugar, matches 
and tobacco, and other commodities manufactured in the 
country, to be oar-marked for meeting occasions of grave finan- 
cial stress. The States had agreed to excises on tobacco and 
matches as Federal sources of revenue permissible in severe 
emergencies. No provision has been made in the Bill in 
in regard to them as such." 

To this Sir Samuel Hoare replied, "The States' accession 
to the subject of Corporation tax would, of course, be subject 
to conditions or limits to bo expressed in the Instrument of 
Accession." After referring to the provision regarding commu- 
tation, and the expiration of 10 years now found embodied 
in the Act, he wrote, "Any further conditions could be consi- 
dered in connection with the negotiations for the Instruments 
of Accession." 

''Apart form this qualification and subject to the special 
provisions relating tu surcharge or taxes on income, no provi- 
Rion is made for the imposition of direct taxation by the 
Federation in a State, unless at some future date some States 
may desire to accede to taxation entries within items 46-56 of 
the Federal Legislative List (i. e. items i8 to 51 and 53 to 59 
of the List in the Act). This is admittedly an unlikely devel- 
opment at any near date, but if in future any State should 
desire to take such a course, there is no reason why provision 
should not be made of admitting it to corresponding benefits... 

The question of attachment of conditions to acceptance 

of item i3 of the Federal Legislative List ( i. e, item -iS of the 
List in the A^ct) can, as in other instances, be considered in 

195 



The Indian Constitution Ch. Vll 

connection with the negotiation of the terms of the Instrument 
vi Accession; but neither in the White Paper nor in the 
recommendations of the Joint Select Committee can any 
support be found fur tlio proposal that federal excises should 
be regarded as in the nature of emergency taxes." 

As regards internal customs dutie?, the J. P. C. Report 
stated, "It is greatly to be desired that States adhering to the 
Federation, should, like other Provinces, accept the principle 
of internal freedom fur trade in India and that the Federal 
Government alone should have the power to impose tariffs and 
other restrictiuns on trade. Many States, however, derive 
substantial revenues from customs duties levied at their 
frontiers on gotds entering the State from other parts of India 

We recognize that it is impossible to deprive 

States of revenue upon which they depend for balancing their 
budgets and that thoy must be free tu alter existing rates of 
duty to suit varying conditions. But internal customs barriers 
are in principle inconsistent with the ^freedom of interchange 
of a fully developed Federation and we are strongly of ihe 
opinion that every effort should be made to substitute other 
forms of taxatiun for these internal customs. The change 
must, uf course, be left to the discretion of the States concerned 
as alternative sources of revenue become available. But in 
any case we consider that the accession of a State to the Fede- 
ration should imply its acceptance of the principle that it will 
not set up a barrier to free interchange so formidable as to 
constitute a throat to the future of the Federation; and, if there 
should be any danger of this, wo think that the powers entrust- 
ed to the Governor-General in his discretion would have to be 
brought to boar upon the States. 

The Crown and the Sinks, 

i4S. Expenses of Ihc Crown in connection with Indian 
States. 



106 



The Government of India Act 1935. (Contd.) 

146. Payments from or by Indian States. 

Note:- This refers to cash contributions and payments in 
respect of loans. 

14 7. Rembsion of States contributions: — (i) Subject 
to the provisions of subsection (3) of this section, His 
Majesty may, in signifying his acceptance of the Instrument 
of Accession of a State, agree to remit over a period not 
exceeding twenty years from the date of the accession of 
the State to the Federation any cash contributions payable 
by that State. 

( 2 ) Subject as aforesaid, where any territories have 
been voluntarily ceded to the Crown by a Federated State 
before the passing of this Act — 

(a) in return for specific military guarantees, pr 

( Z* ) in return for the discharge of the State from 
obligations to provide military assistance, 

there shall, if His Majesty, in signifying his acceptance 
of the Instrument of Accession of that State, so directs, 
be paid to that state, but in the first-mentioned case on 
condition that the said guarantees are waived, such sums 
as in the opinion of His Majesty ought to be paid in respect 
of any such cession as aforesaid. 

(3) Notwithstanding anything in this section — 

(a) every such agreement or direction as aforesaid 
shall be such as to secure that no such remis- 
sion or payment shall be made by virtue of 
the agreement or direction until the Provinces 
have begun to receive moneys under the 

197 



The Indian Constitution Ch. VII 

section of this chapter relating to taxes on 
income, and, in the case of a remission, that 
the remission shall be complete before the 
expiration of twenty years from the date of 
the accession to the Federation of the State 
in question, or before the end of the second 
prescribed period referred to in subsection (2) 
of the said section, whichever first occurs; and 

(^) no contribution shall be remitted by virtue of 
any such agreement save in so far as it exceeds 
the value of any privilege or immunity enjoyed 
by the State; and 

(c) in fixing the amount of any payments in respect 
of ceded territories, account shall be taken of 
the value of any such privilege or immunity. 

(4) This section shall apply in the case of any cash 
contributions the liability for which has before the passing 
of this Act been discharged by payment of a capital sum or 
sums, and accordingly His Majesty may agree that the 
capital sum or sums so paid shall be repaid either by ins- 
talments or otherwise, and such repayments shall be deemed 
to be remissions for the purposes of this section. 

(5) In this chapter "cash contributions" means— 

(a) periodical contributions in acknowledgment of 
the suzerainty of His Majesty, including con- 
tributions payable in connection wn"tb any 
arrangement for the aid and protection of a 
State by His MajeDt}^ and contributions in 
commutation of any obligation of a State to 

198 



The Government of India Act, 1935. (Contd.) 

provide military assistance to Mis Majesty, or 
, ill respect of tlie maintenance by His Majesty 
of a special force for service in connection 
with a State, or in respect of tlie maintenance 
of local military forces or police, or in respect 
of the expenses of an agent; 

(d) periodical contributions fixed on the creation or 
restoration of a State, or on a re-grant or in- 
crease of territory, including annual payments 
for grants of land on perpetual tenure or for 
equalisation of the value of exchanged territory; 

(c) periodical contributions formerly payable to 
another State but now payable to His Majesty 
by right of conquest, assignment or lapse. 

(6 ) In this chapter "privilege or immunity" means 
any such right, privilege, advantage or immunity of a finan- 
cial character as is hereinafter mentioned, that is to say — 

(a) rights, privileges or advantages in respect, of or 
connected with, the levying of sea customs or 
the production and sale of untaxed salt; 

( b ) sums receivable in respect of the abandonment 
or surrender of the right to levy internal 
customs duties, or to produce or manufacture 
salt, or to tax salt or other commodities or 
goods in transit, or sums receivable in lieu of 
grants of free salt; 

(c) the annual value to the Ruler of any privilege 
or territory granted in respect of the abandon- 
ment or surrender of any such right as is men- 
tioned in the last preceding paragraph; 

199 



The Indian Constitution Ch. VII 

(^) privileges in respect of free service stamps or 
the free carriage of State  mails on government 
business; 

(e) the privilege of entry free from customs duties 
of goods imported by sea and transported in 
bond to the State in question; and 

(/) the right to issue currency notes, 
not being a right, privilege, advantage or immunity surren- 
dered upon the accession of the State, or one which, in the 
opinion of His Majesty, for any other reason ought not to be 
taken into account for the purposes of this chapter. 

(7) An Instrument of Accession of a State shall not 
be deemed to be suitable for acceptance by His Majesty, 
unless it contains such particulars as appear to His 
Majesty to be necessary to enable due effect to be given 
to the provisions of this and the next but one succeeding 
sections, and in particular provision for determining from 
time to time the value to be attributed for the purposes 
of those provisions to any privilege or immunity the value 
of which is fluctuating or uncertain. 

14 8. Certain payments to Federated States, &c., to be 
charged on Federal revenues. — Any payments made under 
the last preceding section and any payments heretofore 
made to any State by the Governor-General in Council or 
by any Local Government under any agreements made 
with that State before the passing of this Act, shall be 
charged on the revenues of the Federation or on the 
revenues of the corresponding Province under this Act, as 
the case may be. 

149. Value of privileges and immunities to be set off 
against share of taxes, &c., assigned to Federated States.— 

200 



i 



The Government of India Act, 1935. (Contd.) 

Where under the foregoing provisions of this chapter there 
is made in any year by the Federation to a Federated 
State any payment or distribution of, or calculated by 
reference to, the net proceeds of any duty or tax, the value 
in and for that year of any privilege or immunity enjoyed 
by that State in respect of any former or existing source 
of revenue from a similar duty or tax or from goods of the 
same kind, being a privilege or immunity which has not 
been otherwise taken into account, shall, if and in so far 
as the Act of the Federal Legislature under which the 
.payment or distribution is made so provides, be set off 
against the payment or distribution. 

KoTEs on Soctions 147 to 149 : — The word "periodical" in 
Subsection 5 of Section 147 is an addition in the Act. In Sub- 
section 6, the provision under (d) is an addition in the Act. 

The States' Ministers' Note stated, "The Committee have- 
come to the conclusion that the definition of the term "privilege 
or immunity" is neither accurate nor acceptable to the States 
as a whole, that some States in particular raise the strongest 
possible objection to the description, as a privilege or immunity, 
of the items referred to in Subclauses (a) to (e) ( i. e. roughly 
items a, b, d, e, and f in Section 147 (6) of the Act), and 
contend that in most cases these items cannot be defined as 
concessions, privileges or immunities, many of them having a 
liistorical origin and most of them being the result of some 
specific agreements, compromises or contracts having the 
character and incidence of reciprocal obligations." 

The Princes' Note contained the following remark : — 

"?klany of the financial advantages now enjoyed by the 
States are not at all gratuitous benefits or immunities; they 
arise under agreements and have been paid for and purchased 

c.L.aa 201 



The Indian Constitution Ch. Vll 

for value. Moreover, if any surplus revenue from excise is to 
be refunded to the States, there is absolutely no justification 
for any set-off as claimed by clause U7 of the Bill. If surplus 
taxation is refunded, it surely ought to benefit the people on 
whom the incidence of tax mainly falls; there is no reason to 
have it set off against the so-called and fancied immunities, 
which have a peculiar historical origin and justification of their 
own and cannot be so unfairly withdrawn. 

While dealing with cash contributions, payment of 
tribute, and ceded territories, the Bill has entirely lost sight 
of yet another kind of contribution the States have been making 
towards Federal finance, which deserves proper recognition. 
The Federal Finance Committee at the Round Table Confer- 
ences had enumerated the " contributions in kind made for 
defence by the maintenance of State Forces. " These States 
forces have now been embodied in the Indian Army as distinct 
units, ear-marked for service abroad as well as for internal 
security, and if thoy are maintained at State expense, their 
annual charges ought to be distinctly recognized as contribu- 
tions made by the States towards the Federal fisc and allowances 
made for them " ( See item No. 1 of the Federal Legislative 
List ). 

About this Sir Samuel Hoare wrote;- " The definition 
of privileges and immunities in subsection (6) is b%sed upon the 
Report of the Davidson Committee. The effect of this sub- 
clause is of the nature of a protection to the States rather than 
the reverse, since it limits within the range so defined the 
matters which the Crown may, when the Instruments of Acce- 
ssion are being negotiated, require a State to acknowledge as 
financial privileges or immunities. Without such a definition 
the possible range of such privileges or immunities would be 
extended. " 



202 



The Government of India Act, 1935. (Contd.) 

Miscellaneous Financial Provisions. 

15 0. Expenditure defrayable out of Indian revenues. — 

(i) No burden shall be imposed on the revenues of the 
Federation or the Provinces except for the purposes of India 
or some part of India. 

15 1. Provisions as to the custody of public money*. 

152. Exercise by Governor-Genefal of certain powers 
with respect to Reserve Bank. 

Notes on Section 152 : — The Reserve Bank of India Act 
was passed in 1934:. " It will be the business of the Bank to 
regulate the issue of Bank-notes and the keeping of reserves 
with a view to securing monetary stability in British India and 
generally to operate the currency and credit system of the 
country to its advantage. The original share capital of the 
Bank is five crores of rupees divided into shares of one hundred 
rupees each. Separate registers of share-holders are to be 
maintained ai Bombay, Calcutta, Delhi, Madras and Rangoon. 
The general superintendence and direction of the affairs and 
business of the Bank are entrusted to a Central Board of 
Directors, consisting of a Go\ernor and two Deputy Governors 
to be appointed by the Governor-General in Council, four 
Directors to be nominated by the Governor-General in Council, 
eight Directors to be elected on behalf of the share-holders on 
the various registers, and one Government official to be nomi- 
nated by the Governor-General in Councih fEddy and Lawton 
in "India's Kew Constitution." ) 

15 3. Previous sanction of Governor'General to legisla- 
tion with respect to Reserve Bank, currency and coinage. — 

No Bill or amendment which affects the coinage or currency 
of the Federation or the constitution or functions of the 
Reserve Bank of India shall be introduced into ol" moved 



203 



The Indian Constitution Ch. VII 

in either Chamber of the Federal Legislature without t'le 
previous sanction of the Governor-General in his dis- 
cretion. 

154. Exsniption of certain public property from 
taxation. 

15 5. Exemption of provincial Governments atid 
Rulers of Federated States in respect of Federal taxation. 

Notes : — This Soction is new. There was no correspond- 

ing provision in the Bill. In respect of the Clause in 

the Bill providing for exemption of Federal property from 

taxation in a Province or State, the Princes' Note contained 

the following remark: — "Pkeciprocity demands that Statas' 

properties like Government Securities should be exempted from 

income-tax and other forms of taxation." To this Sir Samuel 

Hoare replied, "It would not be possible to exempt from local 

taxation all property owned by a State in British India, but 

His Majesty's Government are willing to consider the insertion 

of provisions in the Bill to prevent the abolition at any time 

of the existing immunity from taxes and moneys invested in 

Government Securities by a State Durbar or by a Provincial 

Government". 

I 5 6. Adjustment in respect of certain expenses and 
pensions. 

1 57. Duty of Federation and Provinces to supply St;c- 
retary of State with funds. 

15 8. Provisions as to relation of Burma monetary 
system with India. 

159, Relief in respect of tax on income taxable both 
in India and Burma. 

160. Provisions as to customs duties on India^Burma 
trade. 



m 



The Government of- India Act, 1935. (Contcl.) 

CHAPTER II. 
Boirowiog and Audit. 

Borrowing. 

16 1. Cessation of borrowing by Secretary of State in 
Council. 

Note: — See Section 315 (1) below. 

162. Borrowing- by Federal Governnii:nt. 

16 3. Borrowing by Provincial (iovernments. 

16 4. Loans by Federal Government to Federated States. 

16 5. Application of Colonial Stock Acts to stocks issued 
by Federation. 

Audit and Accoimis, 

16 6. Auditor-Genera! of India. 

16 7. Provincial Auditor=General. 

I 6 3. Power of Auditor^Generai of India to give directions 
as to accounts. 

16 9. Audit reports. 

1 7 0. Auditor of Indian Home Accounts. 

17 1. Audit of accounts relating to the discharge of 
the functions of the Crown in relation to Indian States. 

CHAPTER III. 

Property, Contracts, Liabilities and Suits. 

17 2. Vesting of lands and buildings. 
17 3. Provisions as to other property. 

See notes on S. 185. 



205 



The Indian Constitution Ch. Vll 

17 4. Properly accruing by escheat or lapse, or as 
bona vacantia. 

17 5. Power to acquire property and to make con- 
tracts, &c. 

17 6. Suits and proceedings.— (i) The Federation 
may sue or be sued by the name of the Federation of India 
and a Provincial Government may sue or be sued by the 
name of the Province, and, without prejudice to the 
subsequent provisions of this chapter, may, subject to any 
provisions which may be made by Act of the Federal or a 
Provincial Legislature enacted by virtue of powers conferred 
on that Legislature by this Act, sue or be sued in relation to 
their respective affairs in the like cases as the Secretary of 
State in Council might have sued or been sued if th's Act 
had not been passed. 

17 7. Existing contracts of Secretary of 5tate in 
Council. 

17 8. Special provisions as to existing loans, guaran- 
tees and other financial obligations. 

1 7 9. Legal proceedings as to certain matters. 

1 80. Contracts in connection with functions of Crown 
in its relations with Indian Spates. 



20G 



ClIAPTKR VIII. 

THE GOVERNMENT OF INDIA ACT, 1935. (Contd). 

PART VIII. 
THE FEDERAL RAILWAY AUTHORITY. 

181. Executive authority in respect of railways to be 
exercised by Federal Railway Authority. 

182. Composition, &c. of Railway Authority. — (i) 

Not less than three-sevenths of the members of the Autho- 
rity shall be persons appointed by the Governor-General 
in his discretion, and the Governor-General shall in his 
discretion appoint a member of the Authority to be the 
President thereof. 

1 8 3. Directions and principles to be observed by Rail- 
way Authority:— (i) Tha Authority in discharging their 
functions under this Act shall act on business principles, due 
regard being had by them to the interests of agriculture, 
industry, commerce and the general public, and in par- 
ticular shall make proper provision for meeting out of 
their receipts on revenue account all expenditure to which 
such receipts are applicable under the provisions of this 
Part of this Act. 

184. Conduct of business between Railway Authority 
and Federal Qovernment. 

185. Acquisition and sale of land, contracts and work- 
ing agreements- 

Notes : — The Princes' l^ote contained the following 

O 

remark: — "In the matter of railways also the Indian States 
are being asktd to waive their jurisdiction over lands 
ceded only for construction of railways, and though retrocession 
of such jurisdiction is being demanded during the last 15 years, 
the claim has not yet been mot. There is ' o reason frhy the 

207 



The Indian Constitution Ch. Vlll 

Courts in a British Indian Province should exercise such 
jurisdiction in the territories of Indian States simply because 
they are traversed by a railway. This cession of jurisdiction 
over railway lands, lest it becomes perpetual and under Clause 
169 of Bill (corresponding- in some respects to. Section 173) is 
claimed by way of succession by future federal or Provincial 

Governments, should be retroceded without further delay 

Retrocession of jurisdiction over railway lands should precede 
accession to the federation and prevent the descent by way of 
succession of such jurisdiction from the Governor-General in 
Council to the Federal Governinent". 

18 6. Finance of the Railway Authority:— ( i ) The 

Authority shall establish, maintain and control a fund 
(which shall be known as the "Railway Fund") and all 
moneys received by the Authority, whether on revenue 
account or on capital account, in the discharge of their 
functions and all moneys provided, whether on revenue 
account or on capital account, out of the revenues of the 
Federation to enable them to discharge those functions shall 
be paid into that Fund, and all expenditure, whether on 
revenue account or on capital account, required for the dis- 
charge of their functions shall be defrayed out of that Fund: 

Provided that nothing in this subsection shall prevent 
the Authority from establishing and maintaining separate 
provident funds for the benefit of persons who are or have 
been employed in connection with railways. 

187. Provisions as to certain obligations of the Rail= 
way Authority. 

188. investment of funds of Railway Authority. 

189. special provisions as to certain existing funds. 

190. Audit and annual reports. 

208 



. The Government of India Act, 1935. (Contd.) 

19 1. Railway Rates Committee: — The Governor-Gene- 
ral may from time to time appoint a Railway Rates Committeel 
to give advice to the Authority in connection \vith any 
dispute between persons using, or desiring to use, a railway 
and the Authority as; to rates or traffic facilities which he 
may require the Authority to refer to the committee. 

19 3. Bills and amt^ndments for regulating rates and 
fares to require recommendation of Qovernor=QeneraI. 

19 3. Obligation of Railway Authority and Federated 
States to afford mutual traffic facilities and to avoid unfair 
discrimination, &c. 

19 4. Appeal by State to Railway Tribunal from certain 
directions of Railway Authority:— If the Authority, in the 
exercise of any executive authority of the Federation in 
relation to intercharge of traffic or maximum or minimum 
rates and fares or station or service terminal charges, give 
any direction to a Federated State, the State may complain 
that the direction ciscriminates unfairly against ihe rail- 
ways of the State or imposes on the State an obligation to 
afford facilities which are not in the circumstances reasonable, 
and any such complaint shall be determined by the 
Railway Tribunal, 

Notes on Sections 193 and 194: : — The Princes' Note 
contained the following remark, "They (the States) could not 
agree to subordinate the interests of their own railways to the 
dictates of another railway authority on which they had no 
standing. The statutory Railway Authority can only be one 
co-ordinate with and not superior to their own Railway Board. 
As regards the points agreed to be federal, the Federal Railway 
Tribunal ought also to be one available to both sides and not 
one to which the Railway authorities of the State had always 

C.L27 209 



The Indian Constitution Ch. VIII 

to take recourse, like a plaintiff, with the burden of proof 
placed on their shoulders.'' 

19 5. Construction and reconstruction of railways. 

19 6. Railway Tribunal:— (i) There shall be a Tribunal 
(in this Act referred to as "the Railway Tribunal") consist- 
ing of a President and two other persons to be selected to 
act in each case by the Governor-General in his discretion 
from a panel of eight persons appointed by him in his dis- 
cretion, being persons with railway, administrative, or 
business experience. 

( 2) The President shall be such one of the judges of 
the Federal Court as may be appointed for the purpose 
by the Governor General in his discretion after consultation 
with the Chief Justice of India and shall hold office for such 
period of not less than five years as may be specified in 
the appointment, and shall be eligible for re-appointment 
for a further period of five years or any less period: 

Provided that, if the President ceases to be a judge 
of the Federal Court, he shall thereupon cease to be 
President of the Tribunal and, if he is for any reason 
temporarily unable to act, the Governor- General in his 
discretion may after the like consultation appoint another 
judge of the Federal Court to act for the time being in his 
place. 

(3) It shall be the duty of the Railway Tribunal to 
exercise such jurisdiction as is conferred on it by this Act, 
and for that purpose the Tribunal may make such orders, 
including interim orders, orders varying or discharging a 
direction or order of the Authority, orders for the payment 

21Q 



The Government of India Act, 1935. (Contd.) 

of compensation or damages and of costs and orders 
for the production of document;? and the attendance of 
witnesses, as the circumstances of the case may require, 
and it shall be the duty of the Authority and of every 
Federated State and of every other person or authority 
affected thereby to give effect to any such order. 

(4) An appeal shall lie to the Federal Court from 
any decision of the Railway Tribunal on a question of 
law, but no appeal shall lie from the decision of the Federal 
Court on any such appeal. 

(5) The Railway Tribunal or the Federal Court, as 
the case may be, may, on application made for the purpose, 
if satisfied that in view of an alteration in the circumstances 
it is proper so to do, vary or revoke any previous order 
made by it. 

19 7. Rights of railway companies in respect of 
arbitration under contracts. 

19 8. Railways in Indian 5fates which have not 
federated. 

19 9. Official directors of Indian railway companies. 

PART IX. 
THE JUDICATURE. 

CHAPTER I. 
Tbe Federal Court.* 

200. Establishment and constitution of Federal Court. 

— (i) There shall be a Federal Court consisting of a Chief 

*"A Federal Court is an essential element in a Federal 
Constitution. It is at once the interpreter and guardian of 
the Constitution and a tribunal for the determination of 



211 



The Indian Constitution ' Ch. VIII 

Justice of India and such number of other judges as His 
Majesty may deem necessary, but unless and until an 
address has been presented by the Federal Legislature to 
the Governor-General for submission to His Majesty pray- 
ing for an increase in the number of judges, the number of 
puisne judges shall not exceed six. 

(2) Every judge of the Federal Court shall be 
appointed by His Majesty by warrant under the Royal Sign 
Manual and shall hold office until he attains the age of 
sixty-five years : 

Provided that — 

{a) a judge may by resignation under his hand 
addressed to the Governor-General resign his 
office : 

(b) a judge may be removed from his office by His 
Majesty by warrant under the Royal Sign 
Manual on the ground of misbehaviour or of 
I . infirmity of mind or body, if the Judicial 

Committee of the Privy Council, on reference 
being made to them by His Majesty, report 
that the judge ought on any such ground to 
be removed. 

disputes between the constitiient units of the Federation. The 
establishment of a Federal Court is partly of the White Paper 
Scheme, and we approve generally of the proposals with regard 
to it."— J, P. C. Report. 

"Judicial umpiring in constitutional issues is the essence 
of Federalism" — Mr. E. S. Sunda in Ids book "The Federal 
Court of India — A Constitutional Study." 

212 



THte Government of India Act, 1935. (Contd.) 

(3) A person shall not be qualified for appointment 
as a judge of the Federal Court unless he — 

(a) has been for at least five years a judge of a 
High Court in British India or in a Federated 
State; or 

(b) is a barrister of England or Northern Ireland 
of at least ten years standing, or a member of 
the Faculty of Advocates in Scotland of at least 
ten years standing; or 

(c) has been for at least ten years a pleader of a 
High Court in British India or in a Federated 
State or of two or more such Courts in succes- 
sion. 

Provided that — 

(i) a person shall not be qualified for appoint- 
ment as Chief Justice of India unless he is, 
or when first appointed to judicial office 
was, a barrister, a member of the Faculty 
of Advocates or a pleader; and 

(ii) in relation to the Chief Justice of India, 
for the references in paragraphs ( b ) and 
(c) of this subsection to ten years there 
shall be substituted references to fifteen 
years. 

In computing for the purposes of this subsection the 
standing of a barrister or a member of the Faculty of 
Advocates, or the period during which a person has been 
a pleader, any period during which a person has held 
judicial office after he became a barrister, a member of the 

213 



The Indian Constitution Ch. VII t 

Faculty of Advocates or a pleader, as the case may be, 
shall be included. 

(4) Every person appointed to be a judge of the 
Federal Court shall, before he enters upon his office, make 
and subscribe before the Governor-General or some person 
appointed by him an oath according to the form set out in 
that behalf in the Fourth Schedule to this Act. 

Notes: — " In the Australian Act, the Parliament is given 
the power to decide the number, and the maximum is not 
fixed." 

"In the North America Act the judges are to hold office 
during good behaviour The Australian Act makes ' proved 
misbehaviour or incapacity * as grounds for removal." Mr. E. S. 
Sunda in the ' Federal Court of India.' 

201. Salaries, &c. of judges. 

202. Temporary appointment of acting Chief Justice- 

203. Seat of Federal Court:— The Federal Court shall 
be a court of record and shall sit in Delhi and at such 
other place or places, if any, as the Chief Justice of India 
may, with the approval of the Governor-General, from time 
to time appoint. 

204. Original jurisdiction of Federal Court:— (i) 

Subject to the provisions of this Act, the Federal Court 
shall, to the exclusion of any other court, have an original 
jurisdiction in any dispute between any two or more of 
the following parties, that is to say, the Federation, any of 
the Provinces or any of the Federated States, if and in so far 
as the dispute involves any question (whether of law or fact) 
on which the existence or extent of a legal right depends : 

214 



The Government of India Act, 1935. (Contd.) 

Provided that the said jurisdiction shall not extend 
to^ 

(a) a dispute to which a State is a party, unless the 

dispute — 

( i ) concerns the interpretation of this Act or 
of an Order in Council made thereunder, 
or the extent of the legislative or executive 
authority vested in the Federation by 
virtue of the Instrument of Accession of 
that State; or 

(ii) arises under an agreement made under Part 
VI of this Act in relation to the adminis- 
tration in that state of a law of the Fede- 
ral Legislature, or otherwise concerns some 
matter with respect to which the Federal 
Legislature has power to make laws for 
that State; or 

(iii) arises under an agreement made after the 
establishment of the Federation, with the 
approval of His Majesty's Representative 
for the exercise of the functions of the 
Crown in its relations with Indian States, 
between that State and the Federation or 
a Province, being an agreement which ex- 
pressly provides that the said jurisdiction 
shall extend to such a dispute; 
(^) a dispute arising under any agreement which 

expressly provides that the said jurisdiction 

shall not extend to such a dispute. 

(2) The Federal Court m the exercise its original 
jurisdiction shall not pronounce any judgment other than 
a declaratory judgment. 

215 



The Indian Constitution Ch. VIII 

20 5. Appellate jurisdiction of Federal Court in appeals 
irom High Courts in British India:— (i) An appeal shall lie. 
to the Federal Court from any judgment, decree or final 
order of a High Court in British India, if the High 
Court certifies that the case involves a substantial question 
of law as to the interpretation of this Act or any Order 
in Council made thereunder, and it shall be the duty 
of every High Court in British India to consider in every 
case whether or not any such question is involved and of 
its own motion to give or to withhold a certificate accord- 
ingly. 

(2 ) Where such a certificate is given, any party in the 
case may appeal to the Federal Court on the ground that 
any such question as aforesaid has been wrongly decided, 
and on any ground on which that party could have appeal- 
ed without special leave to His Majesty in Council if no 
such certificate had been given, and, with the leave of the 
Federal Court, on any other ground, and no direct appeal 
shall lie to His Majesty in Council, either with or without 
special leave, 

206. Power of Federal Legislature to enlarge appel- 
late jurisdiction:— (i) The Federal Legislature may by Act 
provide that in such civil cases as may be specified in the 
Act an appeal shall lie to the Federal Court from a judg- 
ment, decree or final order of a High Court in British India 
without any such certificate as aforesaid, but no appeal 
shall lie under any such Act unless — 

(a) the amount or value of the subject matter of the 
dispute in the court of first instance and still in 
dispute on appeal was and is not less than fifty 
thousand rupees or such other sum not less than 
fifteen thousand rupees as may be specified by the. 

2ie 



The Government of India Act, 1935. (Contd.) 

Act, or the judgment, decree or final order in- 
volves directly or indirectly some claim or 
question respecting property of the like amount 
or value; or 

(b) the Federal Court gives special leave to appeal. 

(2) If the Federal Legislature makes such provision 
as is mentioned in the last preceding subsection, conse- 
quential provision may also be made by Act of the Fede- 
ral Legislature for the abolition in whole or in part of 
direct appeals in civil cases from High Courts in British 
India to His Majesty in Council, either with or without 
special leave. 

(3) A Bill or amendment for any of the purposes 
specified in this section shall not be introduced into, or 
moved in, either Chamber of the Federal Legislature with- 
out the previous sanction of the Governor-General in his 
discretion. 

207. Appellate jurisdiction of Federal Court in ap- 
peals from High Courts in Federated States: — (i) An appeal 
shall lie to the Federal Court from a High Court in a Fede- 
rated State on the ground that a question of law has been 
wrongly decided, being a question which concerns the 
interpretation of this Act or of an Order in Council made 
thereunder or the extent of the legislative or executive 
authority vested in the Federation by virtue of the Instru- 
ment of Accession of that State, or arises under an agree- 
ment made under Part VI of this Act in relation to the 
administration in that Stat« of a law of the Federal 
Legislature. 



'£5' 



C.L. 28 217 



The Indian Constitution Ch. VIII 

( 2 ) An appeal under this section shall be by way of 
special case to be stated for the opinion of the Federal 
Court by the High Court, and the Federal Court may re- 
quire a case to be so stated, and may return any case so 
stated in order that further facts may be stated therein. 

208. Appeals to His Majesty in Council :— An appeal 
may be brought to His Majesty in Council from a decision 
of the Federal Court— 

( a ) from any judgment of the Federal Court given 
in the exercise of its original jurisdiction in any 
dispute which concerns the interpretation of 
this Act or of an Order in Council made there- 
under, or the extent of the legislative or execu- 
tive authority vested in the Federation by 
virtue of the Instrument of Accession of any 
State, or arises under an agreement made under 
Part VI of this Act in relation to the adminis- 
tration in any State of a law of the Federal 
Legislature, without leave; and 

( ^) in any other case, by leave of the Federal Court 
or of His Majesty in Council. 

209. Form of judgment on appeal. 

210. Enforcement of decrees and orders of Federal 
Court and orders as to discovery, &c. : — (i) All authori- 
ties, civil and jud!cial, throughout the Federation, shall act 
in aid of the Federal Court. 

(2) The Federal Court shall, as respects British India 
and the Federated States, have power to make any order 
for the purpose of securing the attendence of any person, 

21§ 



The Government of India Act, 1935. (Contd.) 

the discovery or production of any documents, or the inves- 
tigiition or punishment of any contempt of court, which 
any High Court in British India has power to make as 
respects the territory within its jurisdiction, and any such 
orders, and any orders of the Federal Court as to the costs 
of and incidental to any proceedings therein, shall be 
enforceable by all courts and authorities in every part of 
British India or of any Federated State as if they were 
orders duly made by the highest court exercising civil or 
criminal jurisdiction, as the case may be, in that part. 

( 3 ) Nothing in this section — 

( a ) shall apply to any such orders with respect to 
costs as is mentioned in subsection (2) of the 
last preceding section; or 

( b ) shall, as regards a Federated State, apply in 
relation to any jurisdiction exercisable by the 
Federal Court by reason only of the making by 
the Federal Legislature of such provision as is 
mentioned in this chapter for enlarging the 
appellate jurisdiction of the Federal Court. 

211. Letters of request to Federated States: — Where 
in any case the Federal Couit require a special case to be 
stated or re-stated by, or remit a case to, or order a stay 
of execution in a case from, a High Court in a Federated 
State, or require the aid of the civil or judicial authorities 
in a Federated State, the Federal Court shall cause letters 
of request in that behalf to be sent to the Ruler of the State, 
and the Ruler shall cause such communication to be made 
to the High Court or to any judicial or civil authority as 
the circumstances may require. 



219 



The Indian Constitution Ch. Vlll 

2 1 2. Law declared by Federal Court and Privy Council 
to be binding on all courts:— The law declared by the 
Federal Court and by any judgment of the Privy Council 
shall, so far as applicable, be recognised as binding on, and 
shall be followed by, all courts in British India, and so far 
as respects the application and interpretation of this Act or 
any Order in Council thereunder or any matter with respect 
to which the Federal Legislature has power to make laws 
in relation to the State, in any Federated State. 

213. Power of Governor=Qeneral to consult Federal 
Court: — ( I ) If at any time it appears to the Governor- 
General that a question of law has arisen, or is likely to 
arise, which is of such a nature and of such public impor- 
tance that it is expedient to obtain the opinion of the 
Federal Court upon it, he may in his discretion refer the 
question to that court for consideration, and the court may, 
after such hearing as they think fit, report to the Governor- 
General thereon. 

( 2 ) No report shall be made under this section save 
in accordance with an opinion delivered in open court with 
the concurrence of a majority of the judges present at the 
hearing of the case, but nothing in this subsection shall be 
deemed to prevent a judge who does not concur from deli- 
vering a dissenting opinion. 

Notes: — The preponderence of opiniou among American 
lawyers is hostile to the idea of 'advisory opinions' on the 
ground that the giving of such opinions is not an appropriate 

judicial function But the advisory nature of jurisdiction 

is so good that attempts should be made to see that such a relief 
is possible to be availed of by the private suitors also and not 
by the Governor-General alone" ( Mr. E. S. Sunda in " The 
Federal Court of India " ) 



220 



The Government of India Act, 1935. (Contd.) 

"It is proposed that tho Federal Court shall have a juris- 
diction similar to that possessed by tli© Privy Council under 
Section 4 of the Judicial Committee Act, 1833, which provides 
that His Majesty may refer to the committee for hearing and 
consideration any matters Avhatsoever as His Majesty may 
think fit, and that the committee shall thereupon hear and 
consider the same and shall advise His Majesty thereon.'' 
(J.P.C. Report.) "Procedure under this Judicial Committee Act 
1833, differs from that under Section 213 in one respect — dis- 
senting judgments are not delivered in the Privy Council. In 
allowing expression of dissent the Federal Court follows the 
practice of the International Court at the Hague. '' ( Eddy and 
Lawton in "India's New Constitution. " ) 

214. Rules of court, &c. 

215. Ancillary powers of Federal Court. 

216. Expenses of Federal Court. 

217. Construction of references to High Courts in 
States. 

2 1 8. Savings. — Nothing in this chapter shall be cons- 
trued as conferring, or empowering the Federal Legislature 
to confer, any right of appeal to the Federal Court in any 
case in which a High Court in British India is exercising 
jurisdiction on appeal from a court outside British India, or 
as affecting any right of appeal in any such case to His 
Majesty in Council with or without leave. 

CHAPTER II. 

The High Courts in British India. 

2 1 9. Meaning of "High Court."— ( i ) The following 
courts shall in relation to British India be deemed to be 
High Courts for the purposes of this Act, that is to say, the 

221 



The Indian Constitution Ch. VIII 

High Courts in Calcutta, Madras, Bomba)'', Allahabad, 
Lahore and Patna, the Chief Court in Oudh, the Judicial 
Commissioner's Courts in the Central Provinces and Berar, 
in the North-West Frontier Province and in Sind, any- 
other court in British India constituted or reconstituted 
under this chapter as a High Court, and any other com- 
parable court in British India which His Majesty in 
Council may declare to be a High Court for the purposes 
of this Act: 

Provided that, if provision has been made before the 
commencement of Part III of this Act for the establish- 
ment of a High Court to replace any court or courts 
mentioned in this subsection, then as from the establish- 
ment of the new court this section shall have effect as if 
the new court were mentioned therein in lieu of the court 
or courts so replaced. 

(2) The provisions of this chapter shall apply to 
every High Court in British India. 

220. Constitution of High Courts:— (i) Every High 
Court shall be a court of record and shall consist of a chief 
justice and such ether judges as His I\Iajesty may from 
time to time deem it necessary to appoint : 

Provided that the judges so appointed together with 
any additional judges appointed by the Governor-General 
in accordance with the following provisions of this chapter 
shall at no time exceed in number such maximum number 
as His Majesty in Council may fix in relation to that 
court. 

( 2 ) Every judge of a High Court shall be appointed 
by His Majesty by warrant under the Royal Sign Manual 



222 



The Government of India Act .1935. (Contd.) 

and shall hold office until he attains the age of sixty years: 
Provided that — 

( «) a judge may by resignation under his hand add- 
ressed to the Governor resign his office; 

( ^ ) a judge may be removed from his office by His 
Majesty by warrant under the Royal Sign 
Manual on the ground of misbehaviour or of 
infirmity of mind or body, if the Judicial Com- 
mittee of the Privy Council, on reference being 
made to them by His Majesty, report that the 
judge ought on any such ground to be removed. 

( 3 ) A person shall not be qulified for appointment as 
a judge of a High Court unless he — 

(a) is a barrister of England or Northern Ireland, 
of at least ten years' standing, or a member of 
the Faculty of Advocates in Scotland of at least 
ten years' standing; or 

(b) is a member of the Indian Civil Service of at 
least ten years' standing, who has for at least 
three years served as, or exercised the powers 
of, a district judge; or 

(c) has for at least five years held a judicial office 
in British India not inferior to that of a sub- 
ordinate judge, or judge of a small cause court; 
or 

{d) has for at least ten years been a pleader of any 
High Court, or of two or more such Courts in 
succession : 

Provided that a person shall not, unless he is, or when 
first appointed to judicial office was, a barrister, a member 

223 



The Indian Constitution Ch. VIII 

of the Faculty of Advocates or a pleader, be qualified for 
appointment as Chief Justice of any High Court constituted 
by letters patent until he has served for not less then three 
years as a judge of a High Court. 

In computing for the purposes of this subsection the 
standing of a barrister or a member of the Faculty of Advo- 
cates, or the period during which a person has been a 
pleader, any period during which the person has held 
judicial office after he became a barrister, a member of the 
Faculty of Advocates, or a pleader, as the case my be, shall 
be included. 

( 4 ) Every person appoiwted to be a judge of a High 
Court shall, before he enters upon his office, make and sub- 
scribe before the Governor or some person appointed by 
him an oath according to the form set out in that behalf in 
the Fourth Schedule to this Act. 

221. Salaries, &c. ol judges. 

222. Temporary and additional judges* 

223. Jurisdiction of existing High Courts: — Subject 
to the provisions of this Part of this Act, to the provisions 
of any Order in Council made under this or any other Act 
and to the provisions of any Act of the appropriate Legis- 
lature enacted by virtue of powers conferred on that 
Legislature by this Act, the jurisdiction of, and the law 
administered in, any existing High Court, and the respe- 
ctive powers of the judges thereof in relation to the adminis- 
tration of justice in the court, including any power to make 
rules of court and to regulate the sittings of the court and 
of members thereof sitting alone or in division courts, shall 

224 



The Government of India Act, 1935. (Contd.) 

be the same as immediately before the commencement of 
Part III of this Act. 

224. Admfni&trative functions of High Courts. 

225. Transfer of certain cases to High Court for trial. 

226. Jurisdiction in revenue matters. 

227. Proceedings of High Courts to be in English, 

228. Expenses of High Courts. 

22 9. Power of His Majesty to constitute or reconstitute 
High Court by letters patent. 

230. Extra=provincial jurisdiction of High Courts: — 

(i) His Majesty in Council may, if satisfied that an agree- 
ment in that behalf has been made between the Governments 
concerned, extend the jurisdiction of a High Court in any 
Province to any area in British India not forming part of 
that Province, and the High Court shall thereupon have the 
same jurisdiction in relation to that area as it has in relation 
to any other area in relation to which it exercises 
jurisdiction. 

(2) Nothing in this section affects the provisions of 
any law or letters patent in force immediately before the 
commencement of Part III of this Act empowering any 
High Court to exercise jurisdiction in relation to more 
than one Province or in relation to a Province and an area 
not forming part of any Province. 

( 3 ) Where a High Court exercises jurisdiction in 
relation to any area or areas outside the Province in which 
it has its principal seat, nothing in this Act shall be 
construed — 

C.L,29 225 



The Indian Constitution Ch. VIII 

(a) as empowering the Legislature of the Province 
in which the Court has its principal seat to in- 
crease, restrict or abolish that jurisdiction; or 

( ^ ) as preventing the Legislature having power to 
make laws in that behalf for any such area from 
passing such laws with respect to the jurisdic- 
tion of the court in relation to that area as it 
would be competent to pass if the principal 
seat of the court were in that area. 

23 1. Saving and definitions. 

PART X 
THE SERVICES OF THE CROWN IN INDIA 

CHAPTER I. 

Defence Services- 

232. Pay, &c., of Comraander-in-Chief. 

2 3.^. Control of His Majesty as to defence appoints 
ments. 

23 4. Eligibility for commissions in Indian Forces 

2 3 5. Control of Secretary of State with respect to con- 
ditions of service. 

2 3 6. Saving of rights of appeal. 

2 3 7. Pay, &c., of members of forces to be charged on 
Federal revenues. 

2 3 8. Provisions as to certain civilian personnel. 

239. King's India cadetships: — In the appointment of 
officers to His Majesty's army the same provision as here- 
tofore, or equal provision, shall be made for the appointment 

226 



The Government of India Act, 1935. (Contd.) 

of sons of persons who have served in India in the military 
or civil service of the Crown. 

In this section the reference to persons who have 
served in India in the military or civil service of the Crown 
includes persons who have so served in Burma or in Aden 
before their respective separations from India. 

CHAPTER II. 
Civil Services. 

General Provisions. 

2 4 0. Tenure of office of persons employed in civil 
capacities in India:— ( i ) Except as expressly provided by 
this Act, eveiy person who is a member of a civil service 
of the Crown in India, or holds any civil post under the 
Crown in India, holds office during His Majesty's pleasure. 

( 2 ) No such person as aforesaid shall be dismissed 
from the service of His Majesty by any authority sub- 
ordinate to that by which he was appointed. 

( 3 ) No such jeison as aforesaid shall be dismissed or 
reduced in rank until he has been given a reasonable 
opportunity of showing cause against the action proposed 
to be taken in regard to him : 

Provided that this subsection shall not apply — 

( a) where a person is dismissed or reduced in rank 
on the ground of conduct which has led to 
his conviction on a criminal charge; or, 

{b) where an authority empowered to dismiss a 
person or reduce him in rank is satisfied that 






The Indian Constitution Ch. Vlll 

for some reason, to be recorded by that 
authority in writing, it is not reasonably practi- 
cable to give to that person an opportunity of 
showing cause. 

(4) Notwithstanding that a person holding a civil 
post under the Crown in India holds office during His 
Majesty's pleasure, any contract under which a person, 
not being a member of a civil service of the Crown in India, 
is appointed under this Act to hold such a post may, if 
the Governor General, or, as the case may be, the Governor, 
deems it necessary in orde»r to secure the services of a 
person having special qualifications, provide for the pay- 
ment to him of compensation if before the expiration of an 
agreed period that post is abolished or he is, for reasons 
not connected with any misconduct on his part, required to 
vacate that post. 

24 1. Recruitment and conditions of service:— (i) Ex- 
cept as expressly provided by this Act, appointments to the 
civil services of, and civil posts under, the Crown in India, 
shall, after the commencement of Part III of this Act, be 
made — 

(a) in the case of services of the Federation, and 
posts in connection with the affairs of the Fede- 
ration, by the Governor-General or such person 
as he may direct; 

( Z*) in the case of services of a Province, and posts 
in connection with the affairs of a Province, by 
the Governor or such person as he may direct. 

(2) Except as expressly provided by this Act, the 
conditions of service of persons serving His Majesty in 

228 



The Government of India Act, 1935. (Contcl.) 

a civil capacity in India shall, subject to the provisions of 
this section, be such as may be prescribed — 

{a) in the case of persons serving in connectien 
with the affairs of the Federation, by rules 
made by the Governor-General or by some per- 
son or persons authorised by the Governor- 
General to make rules for the puipose; 

(b) in the case of persons serving in connection 
with the affairs of a Province, by rules made by 
the Governor of the Province or by some person 
or persons authorised by the Governor to make 
rules for the purpose: 

Provided that it shall not be necessary to make rules 
regulating the conditions of service of persons employed 
temporarily on the terms that their employment may be 
terminated on one month's notice or less, and nothing 
in this sub-section shall be construed as requiring the rules 
regulating the conditions of service of any class of persons 
to extend to any mattter which appears to the rule-making 
authority to be a matter not suitable for regulation by rule 
in the case of that class. 

( 3 ) The said ruleS shall be so framed as to secure — 

(a) that, in the case of a person who before the 
commencement of Part 111 of this Act was 
serving His Majesty in a civil capacity in India, 
no order which alters or interprets to his dis- 
advantage any rule by which his conditions of 
service are regulated shall be made except by 
an authority which would have been competent 
to make such an order on the eighth day of 

229 



The Indian Constitution Ch. VIII 

March, nineteen hundred and twenty-six, or by 
some person empowered by the Secretary of 
State to give directions in that respect; 

(^) that every such person as aforesaid shall have 
the same rights of appeal to the same authori- 
ties from any order which^ — 

( i ) punishes or formally censures him; or 

(ii) alters or interprets to his disadvantage any 
rule by which his conditions of service are 
regulated; or 

(iii) terminates his appointroent otherwise than 
upon his reaching the age fixed for super- 
annuation, 

as he would have had immediately before the 
commencement of Part III of this Act, or such 
similar rights of appeal to such corresponding 
authorities as may be directed by the Secretary 
of State or by some person empowered by the 
Secretary of State to give directions in that 
respect; 

( c) that every other person serving His Majesty in 
a civil capacity in India shall have at least one 
appeal against any such order as aforesaid, not 
being an order of the Governor-General or a 
Governor. 

(4) Notwithstanding anything in this section, but 
subject to any other provision of this Act, Acts of the 
appropriate Legislature in India may regulate the condi- 
tions of service of persons serving His Majesty in a civil 

230 



The Government of India Act, 1935. (Contd.) 

capacity in India, and any rules made under this section 
sliall have effect subject to the provisions of any such 
Act : 

Provided that nothing in any such Act shall have 
eftect so as to deprive any person of any rights required to 
be given to him by the provisions of the last preceding sub- 
section. 

( 5 ) No rules made under this section and no Act 
of any Legislature in India shall be construed to limit or 
abridge the power of the Governor-General or a Governor 
to deal with the case of any person serving His Majesty 
in a civil capacity in India in such manner as may appear 
to him to be just and equitable : 

Provided that, where any such rule or Act is appli- 
cable to the case of any person, the case shall not be dealt 
with in any manner less favourable to him than that pro- 
vided by that rule or Act. 

2 4 2. Application o( preceding section to railway, 
customs, postal and Telegraph services, and officials of 
courts. 

2 4 3. Special provisions as to police. 

Recruitment by Secretary of State and provisions as to 

certain posts. 

2 4 4. Services recruited by Secretary of State^'— (i) 

As from the commencement of Part III of this Act appoint- 
ments to the civil services known as the Indian Civil Service, 
the Indian Medical Service (Civil), and the Indian Police 
Service (which last-mentioned^service shall thereafter be 

?31 



The Indian Constitution Ch. VIII 

known as " the Indian Police ") shall, until Parliament 
otherwise determines, be made by the Secretary of 
State. 

24 5. Special provision as to irrigation. 

24 6. Reserved posts. 

24 7. Conditions of s®tvice, pensions, &c. ol persons 
recruited by Secretary of State. 

24 8. Rights in respect of complaints appeals &c. 

24 9. Compensation. 

Provisions as to persons appointed by Secretary of State 

ifi Councilf persons holding reserved posts and 

conunissiojied officers iii civil employment. 

250. Application of four last preceding sections to per- 
sons appointed by Secretary of State in Council, and certain 
other persons. 

25 1. Staff of High Commissioner and Auditor of 
Indian Home Accounts. 

252. Conditions of service of existing staff of High 
Commissioner and Auditor of Indian Home Accounts. 

25 3. Judges of the Federal Court and High Courts. 
2 5 4. District Judges, &c. 

Notes : — The J. P. C Report wrote, *' A strict 
rule ought in our opinion to be adopted and enforced, 
though it would be clearly out of place in the Constitution Act 
itself, that recommendations from, or attempts to exercise 
influence by members of the Legislature in the appointment or 
promotion of any member of the Subordinate Judiciary are 
sufficient in themselves to disqualify a candidate, -whatever his 

232 



The Government of India Act, 1935. (Contd.) 

personal merits may be. We would admit no exception to this 
rule, which has for many years past been accepted without 
question in the Civil Service of the United Kingdom, 

" A recommendation by the Minister for the appointment 
of a member of the Subordinate Judicial Service should only be 
made with the approval of the Public Service Commission and 
of the High Court." 

2 5 5. Subordinate civil judicial service. 

Notes: — " Candidates should be selected for appointment 
by the Public Service Commission, in consultation with the 
High Court, subject to any general regulations made by the 
Provincial Government as to the observance of communal pro- 
portions The Public Service Commision would of 

course act in an advisory capacity only, but we cannot conceive 
that any Minister would reject their advice or recommend an 
appointment without it." ( J. P. C. R. ). 

2 5 6. Subordinate criminal magistracy. 

Notes: — " Candidates for a first appointment to these 
posts should be selected by the Governor on the recommenda- 
tion of the Minister " ( J. P. C. R. ). 

special Provisions as to Political Department. 

2 5 7. Officers of political department : — (1) Subject to 
the provisions of this section, the provisions of this Part of 
this Act shall not apply in relation to persons wholly or 
mainly employed in connection with the exercise of the fun- 
ctions of the Crown in its relations with Indian States. 

Provisions for the protection of certain existing officers, 

2 5 8. Provision for protection of existing officers of 
certain Services. 

C.L.30 233 



The Indian Constitution Ch. VIII 

2 5 9, Provisions as to ctrtain persons serving in or 
before 1924. 

260. General provisions as to persons retiring before 
commencement of Part III. 

Miscellaneous. 

261. Secretary of State to act with concurrence of his 
advisers. 

262. Eligibility for office of persons who are not 
British subjects :— (i) The Ruler or a subject of a Fede- 
rated State shall be eligible to hold any civil office under 
the Crown in India in connection with the affairs of the 
Federation, and the Governor-General may declare that 
the Ruler or any subject of a specified Indian State which 
is not a Federated State, or any native of a specified tribal 
area or territory adjacent to India, shall be eligible to 
hold any such office, being an office specified in the 
declaration. 

(2) The Governor of a Province may declare that 
the Ruler or any subject of a specified Indian State, or any 
native of a specified tribal area or territory adjacent 
to India, shall be eligible to hold any civil office in 
connection with the affairs of the Province, being an officg 
specified in the declaration. 

(3) The Secretary of State may declare that any 
named subject of an Indian State, or any named native 
of a tribal area or territory adjacent to India, shall be 
eligible for appointment by hira to any civil service under 
the Crown in India to which he makes appointments, and 
any person who, having been so declared eligible, is 



234 



The Government of India Act, 1935. (Contd.) 

appointed to such a service, shall be eligible to hold any 
civil office under the Crown in India. 

(4) Subject as aforesaid and to any other express 
provisions of this Act, no person who is not a British 
subject shall be eligible to hold any office under the Crown 
in India: 

Provided that the Governor-General or, in relation to 
a Province, the Governor may authorise the temporary 
employment for any purpose of a person who is not a 
British subject. 

(5) In the discharge of his functions under this 
section the Governor-General or the Governor of a Province 
shall exercise his individual judgment. 

26 3. Joint services and posts. 

CHAPTER HI. 
Public Service Commissioas. 
26 4. Public Service Commissions. 

265. Composition and stall of Commissions: — (1) 

The chairman and other members of a Public Service 
Commission shall be appointed, in the case of the Federal 
Commission, by the Governor-General in his discretion, 
and in the case of a Provincial Commission, by the Gover- 
nor of the Province in his discretion: 

Provided that at least one-half of the members of 
every Public Service Commission shall be persons who 
at the dates of their respective appointments have held 
office for at least ten years under the Crown in India. 

23| 



The Indian Constitution Ch. VIII 

(2) In the case of the Federal Commission, the 
Governor-General in his discretion and, in the case of a 
Provincial Commission, the Governor of the Province in 
his discretion, may by regulations — 

( a ) determine the number of members of the com- 
mission, their tenure of office and their condi- 
tions of service; and 

( b ) make provision with respect to the numbers of 
staff of the commission and their conditions of 
service. 

(3 ) On ceasing to hold office — 

;«) the chairman of the Federal Commission shall 
be ineligible for further employment under the 
Crovv^n in India; 

[b) the chairman of a Provincial Commission shall 
be eligible for appointment as the chairman 
or a member of the Federal Commission, or 
as the chairman of another Provincial Com- 
mission, but not for any other employment 
under the Crown in India; 

( c ) no other member of the Federal or of any Pro- 
vincial Commission shall be eligible for any 
other appointment under the Crown in India 
without the approval, in the case of an appoint- 
ment in connection with the affairs of a Pro- 
vince, of the Governor of the Province in his 
discretion and, in the case of any other appoint- 
ment, of the Governor-General in his discretion. 

26 6. Functions of Public Service Commissions^ — (i) 

It shall be the duty of the Federal and the Provincial 

23G 



The Government of India Act, 1935. (Contd.) 

Public Service •Commissions to conduct examinations for 
appointments to the services of the Federation and the 
services of the Province respectively. 

(2) It shall also be the duty of the Federal Public 
Service Commission, if requested by any two or more 
Provinces so to do, to assist those Provinces in framing and 
operating schemes of joint recruitment for their forest 
services, and any other services for which candidates posse- 
ssing special qualifications are required. 

26 7. Power to extend functions of Public Service 
Commissions. 

2 6 8, Expenses of Public Service Commissions. 

CHAPTER IV. 
Chaplains. 

26 9. Provisions as to chaplains. 

CHAPTER V. 

General. 
2 70. indemnity for pastacts:— (i) No proceedings civil 
or criminal shall be instituted against any person in respect 
of any act done or purporting to be done in the execution 
of his duty as a servant of the Crown in India or Burma 
before the relevant date, except with the consent, in the 
case of a person who was employed in connection with the 
affairs of the Government of India or the affairs of Burma, 
of the Governor-General in his discretion, and in the case 
of a person employed in connection with the affairs of a 
Province, of the Governor of that Province in his discretion. 

(2) Any civil or criminal proceedings instituted, 
whether before or after -the comiug into operation of this 
Part of this Act, against any person in respect of any act 

237 



The Indian Constitution Ch. VIII 

done or purporting to be done in the execution of his duty 
as a servant of the Crown in India or Burma before the 
relevant date shall be dismissed unless the court is satis- 
fied that the acts complained of were not done in good 
faith, and, where any such proceedings are dismissed the 
costs incurred by the defendant shall, in so far as they are 
not recoverable from the persons instituting the proceed- 
ings, be charged, in the case of persons employed in conne- 
ction with the functions of the Governor-General in Council 
or the affairs of Burma, on the revenues of the Federation, 
and in the case of persons employed in connection with the 
affairs of a Province, on the revenues of that Province. 

27 1. Protection of public servants against prosecution 
and suits: — (i) No Bill or amendment to abolish or restrict 
the protection afforded to certain servants of the Crown in 
India by section one hundred and ninety-seven of the 
Indian Code of Criminal Proceduie, or by sections eighty 
to eighty-two of the Indian Code of Civil Procedure, shall 
be introduced or moved in either Chamber of the Federal 
Legislature without the previous sanction of the Governor- 
General in his discretion, or in a Chamber of a Provincial 
Legislature without the previous sanction of the Governor 
in his discretion. 

27 2. Provisions as to payment of certain pensions 
and exemption of those pensions from taxation in India. 

27 3. Provisions as to family pension funds. 

27 4. Saving for certain Funds Acts. 

27 5. Persons not to be disqualified by sex for holding 
certain offices. 

27 6. Transitional provisions. 

27 7, Interpretation, &c. 

238 



Chapter IX. 

THE GOVERNMENT OF INDIA ACT, 1935. (Contd). 

PART XI 

THE SECRETARY OF STATE, HIS ADVISERS 
AND HIS DEPARTMENT. 

27 8. Advisers to Secretary of State: — (i) There shall 
a body of persons appointed by the Secretary of State, not 
being less than three nor more than six in number, as the 
Secretary of State may from time to time determine, 
whose duty it shall be to advise the Secretary of State on 
any matter relating to India on which he may desire their 
advice. 

( 2 ) One half at least of the persons for the time 
being holding office under this section as advisers of the 
Secretary of State shall be persons who have held office 
for at least ten years under the Crown in India and have 
not last ceased to perform in India official duties under 
the Crown more than two years before the date of their 
respective appointments as advisers under this section. 

( 3 ) Any person appointed as an adviser to the 
Secretary of State shall hold office for a term of five years 
and shall not be eligible for reappointment: 

Provided that — 

{a) any person so appointed may by writing under 
his hand resign his office to the Secretarj' of 
State; 

S39 



The Indian Constitution Ch. IX 

( ^ ) the Secretary of State may, if he is satisfied 
that any person so appointed has by reason of 
infirmity of mind or body become unfit to 
continue to hold his office, by order remove 
him from his office. 

(4) A person for the time being holding office as 
adviser to the Secretary of State shall not be capable of 
sitting or voting in either House of Parliament, 

(5) There shall be paid out of moneys provided by 
Parliament to each of the advisers of the Secretary of State 
a salary of thirteen hundred and fifty pounds a year, and 
also to any of them who at the date of his appointment was 
domiciled in India a subsistence allowance of six hundred 
pounds a year. 

(6) Except as otherwise expressly provided in this 
Act, it shall be in the discretion of the Secretary of State 
whether or not he consults with his advisers on any matter, 
and, if so, whether he consults with them collectively or 
with one or more of them individually, and whether or not 
he acts in accordance with any advice given to him by 
them. 

(7) Any provision of this Act which requires that the 
Secretary of State shall obtain the concurrence of his 
advisers shall be deemed to be satisfied if at a meeting 
of his advisers he obtains the concurrence of at least one 
half of those present at the meeting, or if such notice and 
opportunity for objection as may be prescribed has been 
given to those advisers and none of them has required 
that a meeting shall be held for discussion of the matter. 

240 



The Government of India Act, 1935. (Contd.) 

2 7 9. Existing accounts of Secretary of State in 
Council with Bank of England. 

280. Organisation and expenses of India Office: — (i) 

As from the commencement of Part III of this Act the 
sahiryofthe Secretaiy of State and the expenses of his 
department, including the salaries and remuneration of the 
staff thereof, shall be paid out of moneys provided by 
Parliament. 

28 1. Transfer of existing personnel. 

282, Contributions from revenues of Federation. 

2 8 3, Liability for pensions in respect of service before 
commencement of Part III. 

2 8 4. Provision as to certain India Office provident 
funds. 

PART XII. 
MISCELLANEOUS AND GENERAL. 

The Crown and the Indian States, 

2 8 5. Saving for rights and obligations of the Crown in 
its relations with Indian States. Subject in the case of a 
Federated State to the provisions of the Instrument of Acc- 
ession of that State, nothing in this Act affects the rights and 
obligations of the Crown in relation to any Indian State. 

There are altogether forty States -which have got treaties 
with the British. They are;— Alwar (1803); Bahawalpur (1838); 
Banswara (1818); Baroda (1805); Bharatpur (1805); Bhopal 
(1818); Bikanir (1818); Bundi (1818); Cochin (1809); Cutch 
(1819); Datia (1818); Dewas (Senior, i: Junior) (1818); Dhar 
(1819); Dhou (1806); Gvalior (1804) and (1844); Hyderabad 

CL. 31 241 



The Indian Constitution Ch. IX 

(1800) and (1853) Indore (1818); Jaipur (1818); Jais^lmer 

(1818); Jammu and Kashmir (1846); Jlialawar (1838); Jodhpur 

(1818); Kalat (1876); Karauli (1817); Khairpur (1838); Ivishon- 

garh (1818); Kolhapur (1812); Kotah (1817); Mysore (1881) 

and (1913); Orchha (1812); Partapgarli (1818); Rampur (1794); 

Rewa (1812); Samthar (1817); Sawantwari (1819); Sikkim 

(1814); Sirohi (1823); Travancore (1805); Tonk (1817); Udaipur 

(1818). 

— (Prof. G. N. Singh: Indian States and British India.) 

The Princes' Note contained the following observations: — 
" If the Kulors delegated certain portions of their sovereignty 
and internal jurisdiction to the Crown, they also expected 
that the Crown would accept liability to preserve and safe- 
guard the Vvhole of their sovereignty and internal autonomy 
not specifically thereby safe-guarded from any encroachment 

in the future Amendments and alterations made with 

mutual consent and the free volition of both parties no doubt 
may supplant and take the place of old treaties. As novatio, 
the altered treaties are equally binding; but there ought to 
be no room for any continuous erosive action hereafter from 
usage, sufferance, acquiscencoj political practice or ultimate 
powers of paramountcy so as to undermine the essence and 
the substance from below of these sacred treaties. 



In conclusion it should be well to remember that the 
Princes had originally accepted the invitation to federate out 
of their anxious desire to be of service to the Empire." 

Sir Samuel Hoare wrote; — "His Majesty's Government 
understand that the States feel apprehensive as regards the 
effect cf their acceptance of the legislative and executive 
authority of the Federation in certain matters upon their rela- 
tions with the Crowm in other matters; and these apprehensions 

242 



The Government of India Act, 1935. (Contd.) 

have no doubt also influenced Their Highnesses in the claim 
made in paragraph 9 of their Note that the Bill should repro- 
duce in some form the provisions of Section 132 of the existing 
Government of India Act, -which provides that all treaties 
made by the East India Company are, so far as they are in 
force at the commencement of the Act, binding on His Majesty. 

This Section appeared first in the Government of India 
Act 1858, where it was obviously required by reason of the 
transfer which that Act effected of all rights and oblisrations 
of the East India Company to the Crown; and it was only re- 
enacted in the Government of India Act 1915, because 
that Act consolidated existing Statutes relating lo India, 
and not because it w'as thought necessary to re-affirm 
obligations which the Crown had already assumed. The 
Crown's engagements towards the Indian Rulers need no re- 
affirmation by Parliament. But His Majesty's Government 
are prepared, if the Rulers so desire, to consider the insertion 
in this Bill of a provision to the effect that nothing in the Act 
will aft'ect the engagements of the Crown outside the Federal 
sphere. If, in addition, some States desire a re-affirmaticn of 
the engagements of the Crown towards them so far as they 
relate to matters outside the Federal sphere, this would, as on 
other occasions, more appropriately take some extra-statutory 
form, and His Majesty's Government will consider how best 
a satisfactory assurance would perhaps most convniently be 
given at the time when the execution of Instruments of Acces- 
sion is accepted by His Majesty". 

On the question of Paramoantcy the Princes' Note con- 
tained the following: — 

"The Chamber of Princes have from the very outset 
urged a satisfactory settlement of tho claims of paramountcy 

243 



The Indian Constitution Ch. IX 

to be a condition precedent to the accession of the States to 
any Federation. Among the essential conditions they had 
laid down from time to time, the one treating with a definition 
of paramountcy had been made a si7ie qua non to any Federa- 
tion. They have consistently asked that "the sovereignty and 
autonomy of their States shall be fully respected and guaran- 
teed, and there shall be no interference, direct or indirect, 
with the internal autonomy of their States." It is regretted 
that no effective steps have been taken, so far, to reach a 
settlement of the question of paramountcy, which has justly 
been considered by the princes to be one of vital importance. 
It is true that, as stated by the Secretary of State in his recent 
pronouncement, the Princes had never desired the inclusion 
of the question of paramountcy in the Constitution Act, but 
this does not mean that they have not repeatedly emphasized 
that its settlement is a condition precedent to their entry 
into Federation ". 

His Highness the Maharaja of Patiala's resolution 
adopted by tho Chamber of Princes was as follows: — 

" The Chamber wishes to emphasize that the inauguration 
and success of the Federation will depend entirely on the good- 
will and co-operation of all parties concerned and upon the 
clear recognition of the Sovereignty of the States and their 
rights under treaties and engagements '' 

On the question of sovereignty Mr. Panikkar wrote;— 
" The juristic theory of an absolute, undivided final authority, 

has had no historical experience to back it , 

There can be no doubt that within the limits set by the 
agreements that define their relation with the British Govern- 
ment, Indian rulers are sovereigns by every criterion of 
political science 



244 



)> 



The Government of India Act, 1935. (Contd.) 

Sir T. B. Sapru stated in the closing sessions of the 
Federal Structure Committee: — '* The question of paramountcy 
in relation to the Crown is one thing and in relation to the 
Federation is quite a different thing. There can be no such 
thing under a Federal Constitution as one paramount unit of 
the Federation exercising paramountcy over another unit of 
the Federation. Their basis of Federation is equality '♦. 

Under Transitory Provisions the J. P. C. Report said: — 
" From the date of the inauguration of Provincial Autonomy 
the Governor-General should become solely responsible for the 
control of the relations between the Crown and the States ''. 

286. Use of His Majesty's forces in connection with 
discharge of the functions of the Crown in its relations with 
Indian States:— (i) If His Majesty's Representative for the 
exercise of the functions of the Crown in its relations with 
Indian States requests the assistance of armed forces for the 
due discharge of those functions, it shall be the duty of the 
Governor-General in the exercise of the executive authority 
of the Federation to cause the necessary forces to be 
employed accordingly, but the net additional expense, if 
any, incurred in connection with those forces by reason of 
that employment shall be deemed to be expenses of His 
Majesty incurred in discharging the said functions of the 
Crown. 

(2) In discharging his functions under this section the 
Governor-General shall act in his discretion. 

Notes:— Sir Samuel Hoare wrote: — "The State Ministers 
ask firstly for specific provision that " the authority of the 
Federation should extend to placing at the service of the 
Crown the means of implementing the Crown's obligations to 
the States, " in other words that military forces should bo 

245 



The Indian Constitution Ch. IX 

available for the protection of the States. It is believed that 
the provisions of the Bill are adequate for this purpose, but the 
matter is being re-examined to make sure that there is no room 
for doubt upon the point, to which His Majesty's Government 
attach much importance. '' 

28 7. Arrangements for Governors and Provincial staff 
to assist in discharging functions of Political Department. 

Aden. 

288. Aden. 

Nczv Provinces and alterations of boimdaries of Provinces. 

289. Creation of new Provinces of Sind and Orissa. 

290. Creation of new Provinces and alteiations of 
boundaries of Provinces. 

Franchise. 

29 1. Power of His Majesty to make provision with 
respect to franchises and elections :~In so far as provision 
with respect to the matters hereinafter mentioned is not 
made by this Act, His Majesty in Council may from time 
to time make provision with respect to those matters or 
any of them, that is to say — 

(rt ) the delimitation of territorial constituencies for 
the purpose of elections under this Act ; 

(^) the qualifications entitling persons to vote in 
territorial or other constituencies at such elec- 
tions, and the preparation of electoral rolls; 

( c ) the qualifications for being elected at such 
elections as a member of a legislative body; 

246 



The Government of India Act, 1935. (Contd.) 

(d) the filling of casual vacancies in any such body; 

( (• ) the conduct of elections under this Act and the 
methods of voting thereat ; 

(/) the expenses of candidates at such elections; 

(g) corrupt practices and other offences at or in 
connection with such elections; 

(/i) the decision of doubts and disputes arising out 
of, or in connection with, such elections; 

(?) matters ancillary to such matter as aforesaid. 

MoTES: — " The Provincial electorate under the existing 
franchise numbers approximately seven million men and 

women The Statutory Commission were of Opinion 

that the existing franchise -was too limited, and recommended 
that it should be extended so as to enfranchise about ten per 
cent of the population and they laid special emphasis upon 
"the need of increasing the ratio of women to men voteri.'» 
The Round Table Conference suggested about 25% to be en- 
franchised. "It is estimated that the proposals in the White 
Paper (partly based on the Franchise Committee Report) 
would, if adopted, create a male electorate of between 28 
millions and 29 millions and a female electorate of over 6 
millions as compared to the present figures of 7 miJlicns and 
3,15,000 respectively. " (J- P. C. R.) 

Provisions as to certain legal matters. 

292. Existing law of India to continue in force. 

2 9 3. Adaptation of existing Indian laws, &c. 

29 4. Foreign jurisdiction:— (i) Neither the execu- 
tive authority of the Federation nor the legislative power 
of the Federal Legislature shall extend to any area in a 

247 



The Indian Constitution Ch. IX 

Federated State which His Majesty in signifying his accept- 
ance of the Instrnment of Accession of that State may 
declare to be an area theretofore administered by or on behalf 
of His Majesty to which it is expedient that the provisions 
of this subsection should apply, and references in this Act 
to a Federated State shall not be construed as including 
references to any such area : 

Provided that — 

(a) a declaration shall not be made under this 
subsection with respect to anj' area unless, 
before the execution by the Ruler of the 
Instrument of Accession, notice has been 
given to him of His Majesty's intention to 
make that declaration; 

(b) if His Majesty with the assent of the Ruler of 
the State relinquishes his powers and juris- 
diction in relation to any such area or any 
part of any such area, the foregoing provisions 
of this subsection shall cease to apply to that 
area or part, and the executive authority of 
the Federation and the legislative power of 
the Federal Legislature shall extend thereto 
in respect of such matters and subject to such 
limitations as may be specified in a supple- 
mentary Instrument of Accession for the 
State. 

Nothing in this subsection applies to any area if it 
appears to His Majesty that jurisdiction to administer 
the area was granted to him soley in connection with a 
railway. 



248 



The Government oe India Act, 1935. (Contd.) 

(2) Subject as aforesaid and to the following pro- 
visions of this section, if, after the accession of a State 
becomes effective, power or jurisdiction therein with 
respect to any matter is, by virtue of the Instrument of 
Accession of the State, exercisable, either generally or 
subject to limits, by the Federation, the Federal Legisla- 
ture, the Federal Court, the Federal Railway Authority, 
or a Court or an authority exercising the power or 
jurisdiction by virtue of an Act of the Federal Legislature, 
or is, by virtue of an agreement made under Part VI of 
this Act in relation to the administration of a law of the 
Federal Legislature, exercisable, either generally or 
subject to limits, by the Ruler or his officers, then any 
power or jurisdiction formerly exercisable on His Majesty's 
behalf in that State, whether by virtue of the Foreign 
Jurisdiction Act, 1890, or otherwise, shall not be exer- 
cisable in that State with respect to that matter or, as the 
case may be, with respect to that matter within those limits. 

(3) So much of any law as by virtue of any power 
exercised by or on behalf of His Majesty to make laws in 
a State is in force in a Federated State immediately before 
the accession of the State becomes effective and might by 
virtue of the Instrument of Accession of the State be re- 
enacted for that State by the Federal Legislature, shall 
continue in force and be deemed for the purposes of this 
Act to be a Federal law so re-enacted : 

Provided that any such law may be repealed or 
amended by Act of the Federal Legislature and unless 
continued in force by such an Act shall cease to have effect 
on the expiration of five years from the date when the 
accession of the State becomes effective. 

C.L. 32 249 



The Indian Constitution Ch. IX 

(4) Subject as aforesaid, the powers and jurisdiction 
exercisable by or on behalf of His Majesty before the 
commencement of Part III of this Act in Indian States shall 
continue to be exercisable, and any Order in Council with 
respect to the said powers or jurisdiction made under the 
Foreign Jurisdiction Act, i8§o, or otherwise, and all delega- 
tions, rules and orders made under any such Orderj shall 
continue to be of full force and effect until the Order is 
amended or revoked by a subsequent Order. 

Provided that nothing in this subsection shall be con- 
strued as prohibiting His Majesty from relinquishing any 
power or jurisdiction in any Indian State. 

(5) An Order in Council made by virtue and in exer- 
cise of the powers by the Foreign Jurisdiction Act, 1890, or 
otherwise in His Majesty vested, empowering any person to 
make rules and orders in respect of courts or administrative 
authorities acting for any territory shall not be invalid by 
reason only that it confers, or delegates poweis to confer, 
on courts or administrative authorities power to sit or act 
outside the territory in respect of which they have jurisdic- 
tion or functions^ or that it confers, or delegates power to 
confer, appellate jurisdiction or functions on courts or 
administrative authorities sitting 01 acting outside the 
territory. 

(6) In the Foreign Jurisdiction Act, 1890, the expression 
"a British court in a foreign country" shall, in relation to 
any part of India outside British India, include any person 
duly exercising on behalf of His Majesty any jurisdiction, 
civil or criminal, original or appellate, whether by virtue of 
an Order in Council or not, and for the purposes of section 



250 



The Government of India Act, 1935. (Contd.) 

nine of that Act the Federal Court shall, as respects app- 
ellate jurisdiction in cases tried by a British Court in a 
Federated State, be deemed to be a Couit held in a British 
Possession or under the authority of His Majesty. 

(7) Nothing in this Act bhall be construed as limiting 
any right of His Majesty to determine by what courts 
British subjects and subjects of foreign countries shall be 
tried in respect of offences committed in Indian States. 

(8) Nothing in this section affects the provisions of 
this Act with respect to Berar. 

Notes; — Referring to foreign jurisdiction in an Assigned 
Tract, Lord Reading said in the course of a speech delivered 
during the Viceregal visit to Bangalore in 1923; — 

"This tract, you are aware, is not British India, but is a 
portion of an Indian Slate assigned to the Government of 
India to be held and administered as a Military Station. The 
permanent status of the tract is that of an integral part of 
Mysore State, though for a special reason, the administration 
of this portion of State territory is carried on by a British 
Resident responsible to the Government of India." 

2 9 5. Provisions as to death sentences. 

2 9 6, Courts of Appeal in revenue matters. 

29 7. Prohibition of certain restrictions on internal 
trade:— (i) No FroTincial Legislature or Government 
shall— 

(a) by virtue of the entry in the Provincial Legisla- 
tive List relating to trade and commerce wnthin 
the Province, or the entry in that list relating 
to the production, supply, and distribution of 
commodities, have power to pass any law^ or 



251 



The Indian Constitution Ch. IX 

take any executive action prohibiting or 
restricting the entry into, or export from, the 
Province of goods of any class or description; or 

(b) by virtue of anything in this Act have power to 
impose any tax, cess, toll, or due which, as 
between goods manufactured or produced in the 
Province and similar goods not so manufactured 
or produced, discriminates in favour of the for- 
mer, or which, in the case of goods manufac- 
tured or produced outside the Province, discri- 
minates between goods manufactured or 
produced in one locality and similar goods 
manufactured or produced in another locality. 

(2) Any law passed in contravention of this section 
shall, to the extent of the contravention, be invalid. 

29 8. Persons not to be subjected to disability by reason 
of race, religion, &c. :— (i j No subject of His Majesty domi- 
ciled in India shall on grounds only of religion, place of 
birth, descent, colour or any of them be ineligible for office 
under the Crown in India, or be prohibited on any such 
grounds from acquiring, holding or disposing of property or 
carrying on any occupation, trade, business or profession 
in British India. 

299. Compulsory acquisition of land &c.:— (l) No 
person shall bo deprived of his property in British India 
save by authority of law. 

(2) Neither the Federal nor a Provincial Legislature 
shall have power to make any law authorising the compul- 
sory acquisition for public purposes of any land, or any 
commercial or industrial undertaking, or any interest in, 

252 



The Government of India Act, 1935. (Contd.) 

or in any company owning, any commercial or industrial 
undertaking, unless the law provides for the payment of 
compensation for the property acquired and either fixes the 
amount of the compensation, or specifies the principles on 
which, and the manner in which, it is to be determined. 

3 00. Protection for certain rigtits, privileges, and 
pensions. 

3 01. Repeal of s. 1 8 of 2 1 Geo. 3, c. 7 0, and s. 1 2 of 
3 7 Geo. 3.C. 14 2. (some obsolete enactments ) 

High Comjnissiofier. 

302. High Commissioner for India.'— (i) There shall 
be a High Commissioner for India in the United Kingdom 
who shall be appointed, and whose salary and conditions of 
service shall be prescribed, by the Governor-General, exerci- 
sing his individual judgment. 

(2) The High Commissioner shall perform on behalf of 
the Federation such functions in connection with the busi- 
ness of the Federation, and, in particular, in relation to the 
making of contracts as the Governor-General may from time 
to time direct. 

General Provisions. 

303. Provisions as to Sheriff of Calcutta. 

304. Persons acting as Governor-General or Governor. 

3 5. Secretarial staffs of Governor°General and 
Governor. 

306 Protection of Governor-General, Governor or 
Secretary of Slate. 

3 7. Removal of certain disqualifications on the 
occasion of the first elections to Legislature. 



253 



The Indian Constitution Ch. IX 

308. Procedure as respects proposals for amendment 
of certain provisions of Act and Orders in council:— (i) 

Subject to the provisions of this section, if the Federal 
Legislature or an}' Provincial Legislature, on motions pro- 
posed in each Chamber by a minister on behalf of the 
council of ministers, pass a resolution recommending any 
such amendment of this Act or of an Order in Council 
made thereunder as is hereinafter mentioned, and on 
motions proposed in like manner, present to the Governor- 
General or, as the case may be, to the Governor an address 
for submission to His Majesty praying that His Majesty 
may be pleased to communicate the resolution to Parlia- 1 
ment, the Secretary of State shall, within six months after 
the resolution is so communicated, cause to be laid before 
both Houses of Parliament a statement of any action which 
it may be proposed to take thereon. 

The Governor-General or the Governor, as the case 
my be, when forwarding any such resolution and address ^ 
to the Secretary of State shall transmit therewith a state- 
ment of his opinion as to the proposed amendment and, 
in particular, as to the effect which it would have on the 
interests of any minority, together with a report as to the 
views of any minority likely to be affected by the proposed 
amendment and as to whether a majority of the representa- 
tives of that minority in the Federal or, as the case may be, 
the Provincial Legislature support the proposal, and the 
Secretary of State shall cause such statement and report 
to be laid before Parliament. 

In performing his duties under this subsection the 
Governor-General or the Governor, as the case may be, shall 
act in his discretion. 



2^4 



The Government of India Act, 1935. (Contd.) 

(2) The amendments referred to in the preceding 
subsection are — 

(a) any amendment of the provisions relating to 
the size or composition of the Chambers of the 
Federal Ligislature, or the method of choosing 
or the qualifications of members of that Legisla- 
ture, not being an amendment which would 
vary the proportion between the number of seats 
in the Council of State and the number of seats 
in the Federal Assembly, or would vary, either 
as regards the council of State or the Federal 
Assembly, the proportion between the number 
of seats allotted to British India and the number 
of seats allotted to Indian States; 

{b) any amendment of the provisions relating to 
the number of Chambers in a Provincial Legisla- 
ture or the size or composition of the Chamber, 
or of either Chamber, of a Provincial Legislature, 
or to the method of choosing or the qualifica- 
tions of members of a Provincial Legislature; 

(c) any amendment providing that, in the case of 
women, literacy shall be substituted for any higer 
educational standard for the time being required 
as a qualification for the franchise, or providing 
that women, if duly qualified, shall be entered 
on electoral rolls without any application being 
made for the purpose by them or on their behalf; 
and 

(d) any other amendment of the provisions relating 
to the qualifications entitling persons to be 
registered as voters for the purposes of elections. 



255 



The Indian Constitution Ch. IX 

(3) So far as regards any such amendment as is men- 
tioned in paragraph {c) of the last preceding subsection, the 
provisions of subsection (i) of this section shall apply to 
a resolution of a Provincial Legislature whenever passed, 
but, save as aforesaid, those provisions shall not apply to 
any resolution passed before the expiration of ten years, 
in the case of a resolution of the Federal Legislature, 
from the establishment of the Federation, and, in the case 
of a resolution of a Provincial Legislature, from the com- 
mencement of Part III of this Act. 

(4 ) His Majesty in Council may at an}'' time before 
or after the commencement of Part III of this Act, whether 
the ten years referred to in the last preceding subsection 
have elapsed or not, and whether any such address as is 
mentioned in this section has been submitted to His Majesty 
or not, make in the provisions of this Act any such amend- 
ment as is referred to in subsection ( 2 ) of this section : 

Provided that — 

(i) if no such address has been submitted to His 
Majesty, then, before the draft of any Order 
which it is proposed to submit to His Majesty 
is laid before Parliament, the Secretary of 
State shall, unless it appears to him that the 
proposed amendment is of a minor or drafting 
nature, take such steps as His Majesty may 
direct for ascertaining the views of the Gov- 
ernments and Legislatures in India, who would 
be affected by the proposed amendment and 
the views of any minority likely to be so affect- 
ed, and whether a majority of the representatives 

256 



The Government of India Act, 1935, (Contd.) 

of that minority in the Federal or, as the case 
may be, the Provincial Legislature support the 
proposal; 

(ii) the provisions of Part II of the First Schedule 
to this Act shall not be amended without the 
consent of the Ruler of any State which will be 
affected by the amendment. 

Notes: — " By constituent powers" we mean powers con- 
ferred by the Constitution Act upon some authority other than 
Parliament to vary specified provisions of the Act, whether 
or not such variation is required by the Act to be subject to 
the approval of Parliament." ( J. P. C. R. ) 

309. Orders in Council :— Any power conferred by 
this Act on His Majesty in Council shall be exercisable only 
by Order in Council, and subject as hereinafter provided, 
the Secretary of State shall lay before Parliament the draft 
of any Order which it is proposed to recommend His Majesty 
to make in Council under any provision of this Act, and 
no further proceedings shall be taken in relation thereto 
except in pursuance of an address presented to His Majesty 
by both Houses of Parliament praying that the Order may 
be made either in the form of the draft, or with such 
amendments as may have been agreed to by resolutions of 
both Houses ; 

Provided that, if at any time when Parliament is dis- 
solved or prorogued, or when both Houses of Parliament 
are adjourned for more than fourteen days, the Secretar; 
of State is of opinion that on account of urgency an Order 
in Council should be made under this Act forthwith, it 
shall not be necessary for a draft of the Order to be laid 

c.L. 33 257 



The Indian Constitution Ch. IX 

before Parliament, but the Order shall cease to have effect 
at the expiration of twenty-eight days from the date on which 
the Commons House first sits after the making of the Order 
unless within that period resolutions approving the making 
of the Order are passed by both Houses of Parliament. 

( 2 ) Subject to any express provision of this Act, His 
Majesty in Council may by a subsequent Order, made in 
accordance with the provisions of the preceding subsection, 
revoke or vary any Order previously made by him in 
Council under this Act. 

( 3 ) Nothing in this section applies to any Order of 
His Majesty in Council made in connection with any appeal 
to His Majesty in Council, or to any Order of His Majesty 
in Council sanctioning the taking of proceedings against a 
person who has been the Governor-General, His Majesty's 
Representative for the exercise of the functions of the Crown 
in its relations with Indian States, the Governor of a Pro- 
vince or the Secretary of State, 

3 10. Power of His Majesty in Council to remove 
difficulties. 

Interpretation, 

311. Interpretation. &c. 

"Indian State" includes any territory, whether descri- 
bed as a State, an Estate, a Jagir or otherwise, 
belonging to or under the suzerainty of a Ruler 
who is under the suzerainty of His Majesty and 
not being part of British India; 

"Ruler" in relation to a State means the Prince, Chief 
or other person recognised by His Majesty as the 
Ruler of the State. 



358 



tHE Government of India Act, 1935. (Contd.) 

"railway" includes a tramway not wholly within a 
municipal area; 

"federal railway" does not include an Indian State 
railway but, save as aforesaid, includes any railway 
not being a minor railway; 

"Indian State railway" means a railway owned by 
a State and either operated by the State or 
operated on behalf of the State otherwise than in 
accordance with a contract made with the State 
by or on behalf of the Secretary of State in 
Council, the Federal Government, the Federal 
Railway Authority, or any company operating 
a federal railway; 

"minor railway" means a railway which is wholly 
situate in one unit and does not form a continuous 
line of communication with a federal railway, 
whether of the same gauge or not. 

PART XIII. 

TRANSITIONAL PROVISIONS. 
3 12. Operation of Part XIII. 

3 13. Executive Government. 

3 1 4. Control of the Secretary of State. 

3 15. Sterling loans:— (i) While this Part of this Act 
is in operation, no sterling loans shall be contracted by the 
Governor-General in Council, but in lieu thereof, if provision 
is made in that behalf by an East India Loans Act of the 
Parliament of the United Kingdom, the Secretary of Stato 
may. within such limits as may be prescribed by the Act, 



259 



The Indian Constitution Ch. IX 

contract such loans on behalf of the Governor-General in 
Council. 

3 16. Legislature. 

3 17. Continuance of certain provisions of Qovernment 
of India Act: — (i) The provisions of the Government of 
India Act set out, with amendments consequential on the 
provisions of this Act, in the Ninth Schedule to this Act 
( being certain of the provisions of that Act relating to the 
Governor-General, the Commander-in-Chief, the Governor- 
General's Executive Council and the Indian Legislature and 
provisions supplemental to those provisions ) shall, subject 
to those amendments, continue to have effect notwithstand- 
ing the repeal of that Act by this Act : 

3 1 8. Provisions as to Federal Court and certain other 
Federal authorities: — (i) Notwithstanding that the Federa- 
tion has not yet been established, the Federal Court and 
the Federal Public Service Commission and the Federal 
Railway Authority shall come into existence and be known 
by those names, and shall perform in relation to British 
India the like functions as they are by or under this Act 
to perform in relation to the Federation when established. 

3 19. Rights and liabilities of Governor-General in 
Council and Governor-General to continue after establish- 
ment of Federation. 

Part xiv. 
*commencement, repeals, &c. 

320. Commencenient. 

321. Repeals. 

*See Summary. 
260 



CHAPTER X 

THE GOVERNMENT OF INDIA ACT, 1935. 
SCHEDULES. 



FIRST SCHEDULE. 

Composition of the Federal Legislature. 

Part I. 
Represektatives of British India. 

ta* ••• ••• ••• 

The Federal Assembly. 

• •• ••• ••• •!• 

20. The provisions of this paragraph shall have eflec6 
with respect to the general seats reserved in any Governor's 
Province for members of the scheduled castes ; — 

For the purposes of a general election of members of the 
Federal Assembly, — 

(a) there shall be a primary electorate consisting of 
all persons who were successful candidates at the 
primary elections held, in accordance with the 
provisions of the Fifth Schedule to this Act, on the 
occasion of the last general election of members 
of the Legislative Assembly of the Province for the 
purpose of selecting candidates for seats reserved 
for members of the scheduled castes; 

(6) the members of the primary electorate so constitu- 
ted shall be entitled to take part in a primary 
election held for the purpose of electing four 
candidates for each seat so reserved; and 



261 



The Indian Constitution Ch. X 

(c) no person who is not no elected as a candidate 
bhall be qualified to be chosen to fill such a seat. 

21. For the purpose of choosing persons to fill the 
women's seats in the Federal Assembly there shall be for 
British India an Electoral College consisting of such women as 
are members of the Legislative Assembly of any Governor's 
Province, and the person to fill a M^oman's seat allotted to any 
particular Province shall be chosen by the members of the 
College. 

Rules regulating the conduct of elections by the wo- 
men's Electoral College shall be such as to secure that, of the 
nine women's seats allotted to Provinces, at least two are held 
by Muhammadans and at least one by an Indian Christian. 

22. For the purpose of choosing persons to fill the Anglo- 
Indian, European and Indian Christian seats in the Federal 
AssemV>ly, there shall be for British India three Electoral 
Colleges consisting respectively of such persons as hold an 
Anglo-Indian, a European or an Indian Christian seat in the 
Legislative Assembly of any Governor's Province, and the 
person to fill an Anglo-Indian, European or Indian Christian 
seat allotted to any particular Province shall be chosen by the 
members of the appropriate electoral college. 

In choosing at a general election the persons to fill the 
Indian Christian seats allotted to the Province of Madras, the 
Indian Christian Electoral College shall vote in accordance 
with the principle of proportional representation by means of 
the single transferable vote. 

23. Persons to fill the seats in the Federal Assembly 
which are to be filled by representatives of commerce and 
industry, landholders and representatives of labour shall bo 
chosen — 



o 



02 



The Government of India Act, 1935. (Schedules.) 

(a) in tlie case of a seat allotted to a Province which 
is to be filled by a representative of commerce 
and industry, by such chambers of commerce and 
similar associations voting in Ruch manner as may 
be prescribed ; 

(h) in the case of a seat allotted to a Province which 
in to be filled by a landholder, by such persons 
voting in such territorial constituencies and in 
such manner as ma}' be prescribed; 

(v) in the case of a seat allotted to a Province which 

is to be filled by a representative of labour, by 

such organisations, or in such constituencies and 

in accordance with such manner of voting as may 

be prescril)ed; 

{d) in the case of one of (ho non-jTOvincial seats 
which are to be filled b\' representatives of 
commerce and industrj', by such Associated 
Chambers of Commerce, in the case of another 
such seat by such Federated Chambers cf Com- 
merce and in the case of the third such seat by such 
commercial bodies in Northern India, voting in 
each case in such manner as may bepresciibed; and 

(e) in the case of the non-[irovincial seat which is to 
be filled by a representative of labour, by such 
organisations voting in such manner as may be 
prescribed. 

24. Persons to fill the seats in the Federal Assembly 
allotted to Chief Commissioners' Provinces as general seats or 
Muhammadan seats shall be chosen — 

(a) in the case of Coorg, by the members of the Legis- 
lative Council; and 



2^3 



The Indian Constitution Ch. X 

(h) in other cases in such manner as may be pres- 
cribed. 

25. A person shall not be qualified fo hold a seat in the 
Federal Assembly, unless— 

(i) in the case of a general seat, a Sikh seat, a 
Muhammadan seat, an Anglo-Indian seat, a 
European seat, an Indian Christian seat or a 
woman's seat allotted to a Governor's Province or 
the Province of Coorg, he is qualified to hold a seat 
of the same class in the Legislative Assembly, or, 
in the case of Coorg, the Legislative Council, of 
that Province ; 

(ii) in the case of any other seat, he posKsesses such 
qualifications as may be prescribed. 

General. 

26. (1) In the foregoing provisions of this Schedule the 
following expressions have the meanings hereby assigned to 
them, that is to say : — 

" a European " means a person whose father or any of 
whose other male progenitors in the male line is 
or was of European descent and who is not a 
native of India; 

" an Anglo-Indian " means a person whose father or 
any of whose other male progenitors in the male 
line is or was of European descent but who is a 
native of India ; 

•' an Indian Christian " means a person who professes 
any form of the Christian religion and is not a 
European or an Anglo-Indian; 

264 



The Government of India Act, 1935. (Schedules) 



'* tlie scheduled castes " means such castes, races or 
tribes or parts of or groups within castes, races or 
tribes, being castas, races, tribes, parts or groups 
which appear to His Majesty in Council to 
correspond to the classes of persons formerly 
known as " the depressed classes," as His Majesty 
in Council may specif}'. 

TABLE OF SEATS. 

The Council of State. 
Representatives of British India. 

Allocation of seats. 



1 

Province or 
Community. 


2 

Total 
seats. 


3 

General 
seats. 


4 

Seats for 

Scheduled 

Castes. 


5 

Sikh 
seats. 


6 

Muham- 

madan 

seats. 


7 

Women's 
seats. 


Madras 

Bombay 

Bengal 

United Provinces ... 

Punjab 

Bihar 

Central Provinces 

and Berar 

Assam 

North-West Frontier 

Province 

Orissa 

Sind 

British Baluchistan 

Delhi 

Ajmer Merwara 
Coorg ••• .11 ••• 
Anglo-Indians 
Europeans ...■«-•' ... 
Indian Christians... 


20 
16 
20 
20 
16 
16 

8 
5 

5 
5 
5 
1 

1 
1 
1 

"7 
2 


14 
10 

8 
11 

3 
10 

6 
3 

1 
4 
2 

1 

1 
1 

• •  


. 


1 

1 
1 

1 

1 

1 




4 
4 
10 
7 
8 
4 

1 

2 

4 
1 
3 

1 

• • • 

• * • 




Totals ... 


i 150 

1 


75 


6 4 


49 


6 



C.L 



The Indian Constitution 



Ch. X 





=5> 


in 




< 




m 


^ 


(x. 


<»o 


O 






■t) 


w 






^ 


<1 


^ 


H 


r«! 



^ 






00 

a; 



CO 
CO 

1^ 



;::? 'S^BQS S,U8UIOA\ 



M 



■Jnoq'Ei 

JO saAUB^ugs 

-3jd9j aoj sj'Egs 



C^ Oa r-< rH rH r-l f-l 



C^ 



I— I CI i-H • rH I— I 1— ( 



sjapioq-puBq 



•Aj^snpuT 

pUB 30J9TOiao6 

JO saAp'Bjugs 

-9jd9J JOJ S;'B9S 



07 CO ro ; : • fo 



0> •fiJ'BSS U'BI 

"^^FRD tJ 'El pu i 



u'Eadoang 



•SJ'ESS 

UBtpui-o|?uv 



-O 



•si'Bsg 
nBpBiu-eqnj^ 



•S}B9S q^jig 






4) 

d 

O 



poinpaips 

JOJ p3AJ9Saj 
S}B9S.['EJ9U9Q 



OJ i-l tH 1-4 rH r-l • rH 



oovo^^o^'^Olr^)f>^^l-lfnl-ll-l 



VO 



<^ f I fO r^. 



-M ^T 



JO i-e}ox 



O lU 



4) 

u 

.s 

■> 
o 
u 



!6 
o 
c 

o 



t-l 
(4 

(U 

pq 

: c 

iS 

u 

a 

•fH 

> 

o 



u 
a 

'> 
o 



a 

8 



2 S r-s ? S 






^ Et 



:: =^ 






^ofljKs.ti'SS^oU.i:; 



c 



u 

o 

;pQ : 



rt 



• c3 

•3 

: > 

. o 
u 

o c 
o o 

^12; 



00 



•<*- 



00 



« 



0^ 



t~NOt^t^ooiooioioio--icjrH 

fOrorOfOfOrOi-ii-i 



>0 

o 



o 



o 



266 



The Government of India Act, 1935. (Schedules) 

Part II. 
Representaives of Indian States. 

4. A person shall not be qualified to be appointed under 
this Part of this Schedule to fill a seat in either Chamber 
of the Federal Legislature unless he — 

( i ) is a British subject or the Ruler or a subject of an 
Indian State which has acceded to the Federation; 
and 

(ii) is, in the case of a seat in the Council of State, 
not less than thirty years of age and, in the case 
of a seat in the Federal Assembly, not less than 
twenty-five years of age: 

Provided that — 

( a ) the Governor-General may in his discretion declare 
as respects any State, the Ruler of which at the 
date of the establishment of the Federation was 
by reason of his minority not exercising ruhng 
powers, that sub-paragraph (i) of this paragraph 
shall not apply to any named subject, or to 
subjects general I3', of that State until that State 
comes under the rule of a Ruler who is of an age 
to exercise ruling powers; and 

( 6 ) sub-paragraph (ii) of this paragra}h shall not 
apply to a Ruler who is exercising ruling powers. 

6. Subject to the special provisions hereinafter contained 
with respect to the appointment of persons to represent certain 
States and groups of States comprised in Divisions XVI and 
XVII of the Table of Seats,— 

267 



The Indian Constitution Ch. X 

( i ) the Rulers of States constituting a group of States 
to which a seat in the Council of State is allotted 
in rotation appoint a person to fill that seat; and 

( ii ) the Rulers of the States constituting a group of 
States to which a seat in the Federal Assembly 
is allotted shall appoint jointly a person to fill 
that seat: 

Provided that the Rulers of two or more States entitled 
to appoint in rotation a person to fill a seat in the Council 
of State allotted to a group of States may by agreement, and 
with the approval of the Governor-General in his discretion, 
appoint jointly a person to fill that seat. 

7. The period for which a person shall be appointed 
to fill a seat shall be — 

( i ) in the case of a person appointed to fill a seat in 
the Council of State — 

( a ) by the Ruler of a State entitled to soparate 
representation, nine years; 

( b ) jointly by the Rulers of all the States in a 
group which have acceded to the Federation, 
three years; 

(c) by the Ruler of a State appointing in rota- 
tion, one year subject, however, to the special 
provisions of the next succeeding paragraph 
with respect to certain States therein 
mentioned; 

(d) jointly by Ruler« of some only of the States 
in a group which have acceded to the Federa- 
tion, a period equal to the aggregate of the 

268 



The Government of India Act, 1935. (Schedules) 

periods for which each of them might in rota- 
tion have appointed a person to hold that 
seat or three years, whichever may be the 
shorter period; 

( ) in any other manner, three years; and 
(ii) in the case of a person appointed to fill a seat in 
the Federal Assembly, until the dissolution of the 
Assembly: 

8. The Ruler of a State mentioned in this paragraph 
when appointing in rotation a person to fill a seat in the 
Council of State shall, notwithstanding anything in the prece- 
ding paragraph, be entitled to appoint that person to fill 
the seat — 

(a ) in the case of the Rulers of Panna and of Mayur- 
bhanj, for two years; and 

(6) in the case of the Ruler of Pudukkottai, for three 
years. 

9. Subject as hereinafter provided, the Rulers of two 
or more States forming a group to which one seat in either 
Chamber of the Federal Legislature is allotted shall, in choos- 
ing a person to be appointed by them jointly to fill that seat, 
each have one vote, and in the case of an equality of votes 
the choice shall be determined by lot or otherwise in such other 
manner as may be prescribed: 

Provided that in choosing a person to be so appointed 
the Ruler of a State mentioned in subparagraph (a) of the 
preceding paragraph shall be entitled to two votes and the 
Ruler of the state mentioned in subparagraph (6) of that 
paragraph shall be entitled to three votes. 

269 



The Indian Constitution Ch, X 

10. A seat in either Chamber allotted to a single State 
shall remain unfilled until the Ruler of that State has acceded 
to the Federation^ and a seat in either Chamber which is the 
only seat therein allotted to a group of States shall remain 
unfilled until the Rulers of at least one-half of those States 
have so acceded but, subject as hereinafter provided, so long 
as one tenth of the seats in either Chamber allotted either to 
single States or to groups of States remain unfilled by reason 
of the non accession of a State or States, whether such non- 
accession be due to the minority of a Ruler or to any other 
cause, the persons appointed by the Rulers of States to fill seats 
in that Chamber may from time to time in the prescribed 
manner appoint persons, not exceeding one-half of the number 
of seats so unfilled to be additional members of that Chamber: 

Provided that the right to appoint such additional mem- 
bers shall not be exercised after the expiration of twenty years 
from the establishment of th» Federation. 

A person appointed under ithis paragraph as an additional 
member of either Chamber shall be appointed to fill his seat 
for a period of one year only. 

11. Persons to fill the seats in the Federal Assembly 
allotted to any group of States mentioned in Division XVI of 
the Table of Seats as entitled to appoint persons to fill three 
such seats shall be appointed in the prescribed manner by the 
Rulers of such of the States in the group as have acceded to 
the Federation: 

Provided that — 

(a) until the Rulers of two of those States have so 
acceded, all the three seats shall remain unfilled; 
and 



:70 



The Government of India Act, 1935. (Schedules) 

(b) until the Rulers of four of those Statfis have so 
acceded, two of the three seats shall remain 
unfilled; and 

( c ) until the Rulers of six of those States have so 
acceded, one of the three seats shall remain 
unfilled. 

Seats in the Federal Assembly remaining unfilled bj'' 
reason of the provisions of this paragraph shall be treated as 
seats remaining unfilled for the purposes of the last preceding 
paragraph. 

12, The provisions of this paragraph shall apply with 
respect to the two seats in the Council of ^State and the five 
seats in the Federal Assembly allotted to the States comprised 
in Division XVII of the Table of Seats: — 

(a) the States in question are such States, being States 
which on the first day of Januar}', nineteen 
hundred and Ihirtyfive, were included in the 
Western India States Agency, the Gujarat States 
Agency, the Deccan States Agency, the Eastern 
States Agency, the Central India Agency or the 
Rajputana Agency, or were in political relaJions 
with the Government of the Punjab or the Govern- 
ment of Assam, as may be enumerated in rules 
made by the Governor General in his discretion; 

(& ) the Governor-General shall, in the rules so made 
by him, divide the said States into five groups, 
and of the five seats in the Federal Assembly 
allotted to those States one shall be deemed to be 
allotted to each of the groups; 

271 



The Indian Constitution Ch. X 

( c ) a seat in tlie Federal Assembly allotted to one of 
the said groups shall remain unfilled until the 
Rulers of at leȣt one-half of the States in the 
group have acceded to the Federation, but, save as 
aforesaid, a person to fill such a seat shall be 
appointed in the prescribed manner by the Rulers 
of such of the States in the group as have acceded 
to the Federation; 

(d) persons to fill the two seats in the Council of State 
allotted to the States comprised in the said 
Division shall be appointed in the prescribed 
manner by the persons appointed under the preced- 
ing subparagraph to fill seats in the Federal 
Assembly: 

Provided that, so long as three of the five seats in 
the Federal Assembly remain unfilled, one 
of the two seats in the Council of State shall 
also remain unfilled; 

( e ) seats in the Federal Assembly or Council of State 
remaining unfilled by reason of the provisions of 
this paragraph shall be treated as seats remaining 
unfilled for the purposes of the last but one 
preceding paragraph. 



272 



The Government of India Act, 1935. (Schedules) 

TABLE OF SEATS. 

Tfi6 Council of State and Vie Federal Ai^^emhly. 
Representatives of Indian States. 



1 


ii 1 


3 


4 i 


5 


States and 


or seats 
ncil of 


States and 


0: seats 
Federal 
bly. 


• 




Groups of States. 


M umber 
in Cou 

State. 


Groups of Slates. 


s 2^ a 

§.S<5 


Populat 




1 


Division L 






Hyderabad 


5 


Hyderabad 
Division 11. 


16 


14,436,148 


Mysore 


3 


Mysore 
Division III. 


7 


6,557,802 


Kashmir 


3 

] 


Kashmir 
Division IV. 


4 


3.646,243 


Qwalior 


3 


Gwalior 
Division V. 


4 


3.5-73.070 


Baroda 


3 

1 


Baroda 
Division VI. 


3 


2,443,007 


Kalat 


2 
1 


Kalat 
Division VII. 


1 


342,101 


Sikkim 


1 


Sikkim 


•   


109,808 



c,L.35 



2r3 



The Indian Constitution 



Ch. X 



States and 
Groups of States. 



00 


" 


+= 


tfl 


si 


O 


(1> 




cc 




*; 1 


o 


o 


a 


u 

£ 


3 

o 
O 






Z 



States and 
Groups of States. 





4 




Tl 


^^ 




-tJ 


cri 




eS 


t~i 


1 


HI 


<v 




a: 


r-f 


. 1 


^>^ 


© 


>»! 


r- 


tn 


^ 




© 


S 


o 


X 


© t 


a 


■4-^ 


□5 


fl 


<1 


^ 




1 



£3 
.2 

o 



1. Rampur 

2, Benares 



1 . Travaneore . , 

2. Cochin 

3. Pudukkottai . 
Banganapalle 
Sandur 



1. Udaipur 

2. Jaipur 

3. Jodhpur 

4. Bikaner 

5. Alwar 

6. Kotah 

7. Bharatpur 

8. Took 

9. Dholpur 

10. Karauli 

11. Bundi 

12. Sirohi 

IB. Dungarpur 

14. Banswara 

15. Partabgarh 
Jhalawar 

16. Jaisalmer 
Kishengarh 



1 
1 



2 



2 
2 



} 



Division VIII. 



1. Rampur 

2. Benares 



Division IX. 

1. Travaneore . 

2. Cocliin 
Pudukkottai . 
Banganapalle 
Sandur 



3. 



Division X. 

1. Udaipur 

2. Jaipur 

3. Jodiipur 
4 Bikaner 

5. Alwar 

6. Kotah 

7. Bharatpur 

8. Tonk 

9. Dholpur 
KarauU 

10 Bundi 
Sirohi 

11. Dungarpur 
BanBwara " 

12. Partabgarh 
Jhalawar 

13. Jaisalmer 
Kinhengarh 



1 
1 



5 
1 



2 
8 
2 
1 
1 
1 
1 
1 



465,225 
391;272 



5,095,973 

1,205,016 

400,694 

39,218 

13,583 



1 566,910 

2'63i,775 

2,125,982 

936,218 

749,751 

685,804 

486,954 

817,360 

254,986 

140,525 

216,722 

216,528 

227,544 

260,670 

76,539 

107,890 

76,255 

85,744 



vjBeaan-gefcwga^J 



274 



The Government of India Act, 1935 (Schedules). 



States aud 
Groups of States. 





2 




tn 






■*s 






crt 


«M 




<D 







03 






•-t-c 


7^ 




U 







U, 


a 







p 




j::> 





. 


SO 




-4-3 


-1 




e« 


^ 


_fl 


CO 



States and 
Groups of States, 





4 




tn 




1 


■i.9 


>>*4 




as 


sS 




Oi 






ou 


0) 




:v-l 


-n 


• 





O) 


>.; 


0:1 
.D 


fa 


-e 


6 


j3 




-1 




013 


,2; 


fl 


<' 



a 
o 

o 



1. Indore 

2. Bhopal 
llewa... 
Datia .. 
Orchha 
Dhar .., 



7. Dewaa (Seuioiv 
Dewas (Junior') 

8. Jaora..- 
Ratlam 

9. Panna 
Samthar 
Ajaigarli 

10. Bijawar 
Charkhari 
Chhatarpur .. 

11. Baoni... 
Nagod 
Maihar 
Baraundha ... 

12. Barwani 

Ali Rajpur ... 
Shahpura 

13. Jhabua 
Sailana 
Sitamau 

14. Rajgarh 
Narsingarb .. 
Khilchipur . . 



2 

2 

2 
1 
1 
1 



DirsioN XI. 



1, Indoi'e 

2. Bhopal 
'S. Rewa . . . 

4. Datia ... 
Orchha 

5. Dhar ... 
Dewas (Seuicr 
Dewas (Junior 

6. Jaora . . . 
Ratlam 

7. Panna... 
Samthsr. 
Ajoigarh 

8. Bijawar 
Charkhari 
Chhatarpur 

9. Baoni . . . 
Nagod 
Waihar 
Baraundha 

10. Barwani 
Ali Rajpur 
Shahpura 

11. Jhabua 
Sailana 
Sitamau 

12. Rajgarh 
Narsiugarh 
Khilchipur 



1,32.5,089 

729 955 

1.587,445 

158,834 

314,661 

243,430 

83,321 

70513 

3 00.166 

107,321 

212.130 

83.307 

85,895 

115,852 

120,351 

161,-67 

19,132 

74,589 

68,9.91 

16,071 

141 110 

101 963 

54,233 

145,522 

35,223 

2^,-^22 

134,891 

113,873 

45,583 



27P 



The Indian Constitution 



Ch. X. 



States aud 
Groups of States. 



•58 O 
O 
CO -^ 

o1 
u a . 

0^ o © 

-^2 O ■*= 

3 .5 CO 



States and 
Groups of States. 



® 
o 

u 
<D 

s 



4 

<i> >» 

2 S 



O 

s 

o 

Oh 



] . Cutch 
2 Idar ... 

3. Nawanagar 

4. Bhavaagar 

5. Junagadh 

6. Raj pip] a 
Palanpur 

7. Dhrangadlira 
Gondal 

8. Por bandar 
ilorvi... 

9 Radhanpur 
Waukaner 
Palitana 

10. Cainbay 
Dharampur 
Balasinor 

11. Barift ... 
Chhota Udepur 
Sant . . . 
Lunawada 

1 2. Bansda 
Sachiu 
Jawhar 
Danta... 

13. Dhrol... 
Limbdi 
Wadlnvan 
Rajkot 



Division XII. 



1. Cutch 

2. Idar ... 

3. Nawanagar 

4. Bhavnagar 

5. Junagadh 

6. Rajpipla 
Palanpur 

7. Dhrangadhra 
Gondal 

8. Por bandar 
Morvi... 

9. Radhanpur 
Wankaner 
PaUtana 

10. Cam bay 
Dharampur 
Balasinor 

11. Baria ... 
Chhota Udepur 
Sant ... 
Lunawada 

12. Bansda 
Sachin 
Jawhar 
Danta... 
Dhrol... 
Limbdi 
Wadhwan 
Rajkot 



} 
} 
} 



1 
1 
1 
1 
1 



> 1 



514.307 

262,660 

409,192 

500,274 

545,152 

206,114 

264.179 

88,961 

205 846 

115,673 

118,023 

70,530 

44,259 

62,150 

87,761 

112,031 

52,525 

159.429 

144,640 

83,531 

95,162 

48,839 

22,107 

57,261 

26,196 

27,639 

40.088 

42,602 

75,54-0 



':7^ 



The Government of India Act, 1935 (Schedules). 



T" 



States and 
Groups of States. 



05 
*= ti-i 

aS o 

tE — < 

--*- 'S 

<I> o 

1 — ' ..-1 ^-^ 
2; 



3 



Oj 



States and 
Groups of States, 



eS t-> 
0) o 

0) 0:1 S 



a 
o 



o 



1 Kolhapur 

2. Sangli... 
Savautvadi 

3. Janjira 
Mudhol 
Bhor ... 

4. Jamkhandi .. 
Miraj (Senior) 
Miraj (Junior) 
Kurundwad .. 

(Senior) 

, Kurundwad .. 

(Junior) 

5. Akalkot 
Phaltan 
Jath ... 
Aundh 



li 



} 



2 
1 



} 

1 



1^ 1 



Ramdurg 



:::J 



5^ 1 



IVISION XIII. 

1. Kolahpur 

2. Sangli ••• X 
Savautvadi ... / 

3. Janjira 
Mudhol 
Bhor ... 

4. Jamkliandi .. 
j\Iiraj (Senior) 
Miraj (Junior) 
Kurundwad .. 

(Senior) 

Kurundwad .. 

(Junior) 

5. Akalkot 
Phaltan 
Jath ... 
Aundh 
Kamdurg 



Division XIV, 



1. Patiala 


2 


1. Patiala 


2. Bahawalpur ... 


2 


2. Bahawalpur ... 


3. Khairpur 


1 


0. Khairpur 


4. Kapurthala ... 


1 


4. Kapurthala ... 


5. Jind ... 


1 


5. Jind ... 


G. Nabha 


1 


G Nabha 



1 
1 



y 1 



1 

I 
I 

J 



i 



957.13T 

258,442 

230,589 

110,379 

62,832 

141,546 

114,270 

93,938 

40,684 

44,204 

S9,o83 

92,605 
58,761 
91,099 
76,507 
35,454 



1,625,520 
984,612 
227,183 
316,757 
324,676 
287,574 



277 



The Indian Constitution 



Ch. X 



1 


2 

eS O 

03 


3 


4 

03 U 
© ® 


5 




^ 772 




JC -73 . • 


, 




^4-1 U 




14-1 © P*-. 


e 


States and 


o a 


States and 


oc=^3 


.2 


Groups of States. 


umber 
iu Gou 
State. 


Groups of States. 


umber 
in the 
Assem 


opulat 




1^ 




z; 


P. 




Division XIV — cont. 










7. Tehri-Garhwal 


1 


349,573 


7. Mandi 


] 


8. Mandi 


) 


207,465 


Bilaspur 


> 1 , Bilaspur 


\ 1 


100,994 


Siiket 


j 


Suket 


) 


58,408 


8. Tehri-Garhwal 






) 




Sirmur 


 \ 


9. Sirmur 


\ 1 


148,668 


Chamba 




Chamba 


1 


146,870 


9. Faridkot 


J 


10. Faridkot 


) 


164.364 


Malerkotla ... 


Malerkotla ... 


\ 1 


83,072 


Loharu 


Loharu 


) 


23,338 




Div 


ISION XV. 






1. Gooeh Behar... 




1. Cooch Behar ... 


1 


590.886 


2. Tripura 


V 


2, Tripura 


1 


382,450 


Manipur 


3. Manipur 


1 


445,606 




Div 


ISION XVI. 






] . M ay urbhanj . . . 


• 1 


1. May urbhanj ... 


1 


889,603 


Sonepur 


2. Sonepur 


1 


237,920 


2. Patna 


}^ 


3. Patna... 


1 


566,924 


Kalahandi 


4. Kalahandi 


1 


513,716 


3. KoeDJhar 


•v 


5 Keonjhar 


1 


460,609 


Dhenkanal ... 


1 


6. Gangpur 


1 


356,674 


Naya^arh 


> I 


7. Bastar 


1 


524,721 


Talcher •«. 




8. Surguja 


1 


501,939 


Nilgiri 


- 









278 



The Government of India Act, 1935. (Schedules). 



1 


*4 


3 4 


6 




cc 




X --T 






*^ U-l 




•J (36 






e8 




ca fc. 






0) 




(D (V, 




States and "S c 


States and 


•ot s 
Fed 
bly. 


.2 


Groups of States. «R § «^ 

3 .5 CO 


Groups of States. J ^ g 

a -1^ "'J 
3 .5 <5 


■*3 



^ 


^A 


Ph 


Div 
1 


isioN XVI — cont. 






4. Qangpur 


-j 


9. Dhenkanal ... 


-» 


284',326 


Bamra 




Nayngarh 




142.40G 


Seraikela 


- 1 


Seraikela 




143,525 


Baud 




Baud... 




135,248 


Bonai 




Taleher 


> 3 


69,702 


5. BaBtar 


1 


Bonai 




80,186 


Surguja 


Nilgiri 




68,594 


Raigarh 




Bamra 




151,047 


Nandgaon 




4 




j ' 


10, Raigarli 


^ 


277,569 


6. Khairagarh ..." 


Khairagarli ... 




157,400 


Jashpur 

Kanker ... ^ 1 


J ash pur 




193,698 


Kanker 


► 3 


136,101 


Korea 


Sarangarh 




128,967 


Sarangarh ... J 


Korea 




90,886 




Nandgaon 

* 1 


^ 


182,380 




Div 


ISION XVII. 

1 






States not men- 


2 


States not men- 


5 


3,032,197 


tioned in any of 




tioned in any of 






the preceding 




tlie preceding 






Divisionri, but de- 




Divisions, but de- 






scribed in para- 




scribe<l in para- 






graph 12 of this 




graph 12 of this 






Part of this 




Part of thisSche- 1 






Schedule. 




dule. 







Total population ( f the States in this Table: 78,981,912 



279 



The Indian Constitution Ch. X 

THIRD SCHEDULE. 

Provisions as to Govehnor-General and Governors 

OF Provinces. 



4. There shall be granted to and in respect of the 
Governor-General and the Governor of every Province such 
customs ];rivileges as may be specified by Order in Council. 



FOURTH SCHEDULE. 

FoBMs OF Oaths or Affirmations. 



2. 

Form of oath or affirmation to be taken or made by a 
member of a Legislature who is the Ruler of an Indian State: — 

" I, A. B,, having been elected [ or nominated or 
appointed ] a member of this Council [ or Assembly ], 
do solemnly swear [ or afHrm ] that I will be faithful 
and Ijear true allegiance in my capacity as Member of 
(his Council [ or Assembly ] to his Majesty the King, 
Emperor of India, His heirs and successors, and that 
1 will faithfully discharge the duty upon w^hich I am 
about to enter." 



280 



The Government of India Act, 1935. (Schedules). 

3. 

Form of oath or aflTirnution to be taken or made l)y a 
member of a Legialatnre who is a subject of the Ruler of an 
Indian State; — 

" I, A. B., havinfj been elected [ or nominated 
or appointed] a member of this Council [or Assembly], 
do solemnly swear [ or affirm ] that saving the faith 
and allegiance which I owe to C. D., his heirs and 
successors, I will be faithful and bear true allegiance in 
my capacity as Member of this Council [ or Assembly] 
to His Majesty the King, Emperor of India, His heirs 
and successors, and that I will faithfully discharge the 
duty upon which I am about to enter." 



FIFTH SCHEDULE. 

Composition of Provincial legislatures. 

General qualification for Membership. 
1. A person shall not be qualified to be chosen to fill 
a sent in a Provincial Legislature unless he — 

[a] is a British subject or the Ruler or a subject of an 

Indian State which has acceded to the Federation 

or, if it is so prescribed with n^spect to any 

Province, the Ruler or a subject of any prescribed 

Indian State; and 

{b) is, in the ease of a seat in a Legislative Assembly, 
not less than twenty-five years of age, and in 
the case of a seat in a Legislative Council, not less 
than thirty years of age; and 

C.I, 36 281 



The Indian Constitution Ch. X 

(fi) possesses such, if any, of the other quahfications 
specified in, or pj-escribed under, this Schedule as 
may be appropriate in his case. 



12. A person shall not be qualified to hold a seat in the 
Legislative Assembly of a Province unless — 

(a) in the case of a seat to be filled by a woman, by a 
European, by an Indian Christian, by a re- 
presentative of backward areas or backward tribes, 
by a representative of commerce, industry, mining 
and planting, by a representative of universities or 
by a representative of labour, he possesses such 
qualifications as may be prescribed; and 

( h) in the case of any other seat, he is entitled to 
vote in the choice of a member to fill that seat 
or any other seat of a similar class in that 
Province. 



18, The terra of office of a member of the Legislative 
Council of a Province, other than a member chosen to fill a 
casual vacancy, shall be nine years, but upon the first constitu- 
tion of the Council the Governor in his discretion shall make 
by order such provision as he thinks fit, by curtailing the term 
of oflSce of some of the members then chosen, for securing that, as 
nearly as may be, one-third of the members holding seats of 
each class shall retire in every third year thereafter. 

A member chosen to fill a casual vacancy shall be chosen 
to serve for the remainder of his predecessor's term of office. 

282 



The Government of India A.ct, 1935. (Schedules). 



o\ 



< 

fa 
O 

(^ 
Eh 



CO 



rO 



CO 
CO 



HO 

O 



M 



O 



VO 



CJ 



c 
<u 

o 

o 



o i5 






•uBi}suq3 uietpui 


'U'Eipui-oiSuy 


•UBpBtuui'Eqni^ 


*»lHiS 



•[BasusQ 



^ unoqBi 

JO ssAUtJlussajdaa joj s;'b9S 



•sj'ESS AnsaQAiuf^ 



•siBSs sjspioiipuBq 



•;punu'Eid put: 
^ guTUun 'Xa}snput" 'aoJ9inmo3 
JO 's9ApB;uss3jdaa aoj sib9S 



■SJE3S u'Bpsi.iqo u-Eipuj 



•si'eas UT39doan3 



•s;'E3s u'Expui'Olouy 



•s^tas UBpTJiuui'Biiniv 



•SJT33S q^is 



•saqxj; pu'E sb9jb pj'BANs^^i'Gq 

JO S9A11'ElU9S3jd9J JOJ 9»T395 



1-4 •••;;•;;; ; 








. . . 




r-i »H oj e^ oj *-< ; : 


• : "* 


i : ; i-^ i : : 


•  a 


Ou^^*'-''^''^'^ 


 M ^ 


vot^ao'^'^f^c^^ 


: ^ -^ 


,-( 1-1 CM 1-1 .-1 rH .-1 ; 


: : : 


vo ?^ JO vo «o 'I- f^ ; 


OJ<NN 




: —1 ^j 


C» fO N N OJ ^ ^ 


1— t 


rOfO>-l(MT-lC^lT-l»-t 


: ; «^ 


<M M fO rH .-1 r-l .-1 ; 


: : i 




: : : : "^ : : '. 


ro 


^ ,-1 I> r-( 


»n 



d- 



g t, p9AJ9S9a s;b9S 1^J»U30 

^ en •si'e9S l^jauao 1° l^^ox 



•S}B9S F?ox 



u 

c 

o 



oioooooioot^ *b 
CO .-H f«^ c^ rH CM : 






U-)lOOQ0<riMN00O<5O 
C^l i-< M Ol '-<'-''-' •"• 



<u 

 : 1'^ 

c 

to SG 

o 



. > 

a. 



O 
C 



l-i 



a 
o 

Ui 






o S c sm « 

M n P ;i. ;^ o 






Oc/3 



>-< 

C 
c3 

s 



.a «= 



•^ I 



o 

o 



rt « C 
o 
c 



l3 -^ 



o 
Si 



O <n ^^ 



h Xi 



(A 



aj en > 
•-; rf O 



JJ 
w 


M 


?> 


U) 


lU 




rt) 


"H 


4) 

01 


O 


if? 


^^ 


.a 


1m 


rt 


TD 






n 




01 


n1 


rt 


t-i 


i-l 




60 


U 


<U 


lU 


J3 


.3 


J 


■4-* 


■*-* 


•«^ 


M-* 


r1 


t4-l 


o 




o 


o 


;n 


r: 


c 




4) 


o 


U 




J3 


T-I 


t/) 


d 


R 


>< 


r, 


cJ 




3 


a 


P 




rt 



d c c 



283 



The Indian Constitution 



Ch. X 



CO i 







00 O 


CO 'tfi 


CC 00 


CO 00 


CO ^ 


CO ^ 




T3 


f-H 














^ c 


han 
than 


C 


C3 


fl 


fl 


a 










^ 




|5 


» 


o o 


CO O 


-*^ as 

^ 0-. 


^ o 




^ o 






02 ^ 


-2 g 


s a 


Ji s 


^ a 


^ a 


js a 




tl >> 


-1-3 -^3 


■«^ ~L3 


-^ -t.3 


-i^ -t5 


-l-S <l-3 


.^ ,t3 




?. -° 


o o 


o o 


o o 


o o 


o o 


o o 






^^ 


^^ 


^^ 


^;2; 


'A'^ 


1^1^ 




•X[qui9ssv 














!>• 


9AV:)^J|8lS9'7 


• 


• 


1— 


• 
• 


•N 


• 
• 




Aq i)9iiy 


• 


• 


C^l 


 


I— t 


• 




9q 0"[ B^'B9g 














!r> 


•spag uBi^ 


CO 


• 


• 
• 


. 


• 


. 




-sijqQ uijipnj 




• 


• 


• 


• 




tO 


•s:j'B9g 
nt39doana 


rH 


I— I 


CO 


I— 1 


I-" 


<N 


'a 


s^t?9g uup 
-i3iniUBqnx\[ 


t- 


LO 


I— 1 




rP 


CO 


70 


•s^'Bag 


CO 


o 


o 

r— 1 


00 


05 


o 

I—I 




|P.I9U9{r) 


^-^ 


^•~. 


,— *— 


f^^ 


r-'^ 


^-^ 






■«3H CO 


Oi O 


CO in 


00 o 


c» o 


i-< <M 




, 


U5 iO 


CJ CO 


CO CO 


« CO 


C<l CO 


CN C^ 




05 


_ a 


fl 


a 


C5 


c 


a 




«s 


C eS 


c le 


a ss 


p ce 


a oj 


a ee 




<u 


ce ^ 


ce ^ 


rt ^ 


cs Si 


•s ^ 


cS ^ 




OD 


J *s 


j3 •♦^ 


^ --^ 


^ -*^ 


-G -^^ 


^ -»j 


'N 


CM 


^ © 


-^ <!> 


■*^ <D 


^ OJ 


•^ © 


-^ (D 




o 


OD ^ 


m «- 


XTj f-i 


03 S-" 


cc J-i 


m 5- 






03 O 


«3 O 


w O 


03 O 


03 O 


co O 




3 


^ a 


^ S 


^ s 


^ a 


-2 a 


^ a 




o 


•iS -M 


■1.9 -t-S 


•*J -(.3 


-^ -4^ 


-*^ -i.3 


-u .*a 




H 


O O 


o o 


o o 


o o 


o o 


O O 




^^2; 


'A'^ 


^^ 


^;^ 


;^^ 


J2;^ 




• 


• 
• 
• 

• 


• 
• 


• 
• 

• 


• 
• 

05 

d 


• 
• 


• 
• 

• 




o 


• 


• 


• 


> 


« 


• 


— 1 


a 

> 
o 


• 


• 


• 


2 

Oh 


• 


• 










bJD 




&4 


a 






(3 


s 

O 


a 




< 



284 



The Government of India Act, 1935. (Schedules.) 

SIXTH SCHEDULE. 

Provisions as to Franchise. 
PART 1. 
General, 



4. No person shall be included in the electoral roll for, 
or vote at any election in, any territorial constituency if 
he ia of unsound mind and stands so declared by a competent 
court. 

5. No person shall be included in the electoral roll for 
a Sikh constituency, a Muhammadan constituency, an Anglo- 
Indian coustituencA', a European constituency or an Indian 

Christian constituency unless he is a Sikh, a Muhammadan, 
an Anglo-Indian, a European or an Indiau Christian, as the 
case may be. 

6. No person who is or is entitled to be included in the 
electoral roll for any Sikh constituency, Muhammadan consti- 
tuency, Anglo-Indian constituency, European constituency or 
Indian Christian constituency in any Province shall be included 
in the electoral roll for a general constituency in that Province, 
or vote at any election to fill a general seat therein: 

Provided that this paragraph shall not apply in relation 
to the general seats reserved for women in Assam aihd Orissa 
or the constituencies for the election of persons to fill those 
seats. 

7. No person shall in any Province vote at a general 
election in more than one territorial constituency, and in each 



285 



The Indian Constitution Ch. X 

Proviuce such provisions, if any, as may be prescribed in rela- 
tion to that Province shall have effect for the purpose of 
preventing persons being included in the electoral roll for 
more than one territorial constituency in the Province: 

Provided that, in any Province in which territorial con- 
stituencies have been specially formed for the purpose of elect- 
ing women members, nothing in this paragraph or in any such 
provisions shall prevent a person from being included in the 
electoral roll for, and voting at a general . election in, one 
territorial constituency so formed and also one territorial 
constituency not so formed. 

9. No person shall vote at any election in any territori- 
al constituency, if he is for the time being undergoing a sen- 
tence o f transportation, penal servitude, or imprisonment. 

10. The following provisions shall have effect with 
respect to the enfranchisement of women in respect of the 
qualifications of their husbands — 

{a) a woman who, at the date of the death of her hus- 
band is included in an electoral roll for a territorial 
constituency by virtue of his qualifications shall, 
notwithstanding anything in the subsequent 
provisions of this Schedule, continue to be on the 
roll for that constituency unless she remarries or 
becomes disqualified under the foregoing provisions 
of this Schedule for inclusion in that roll; 

(6) not more than one woman shall at any one time 
appear in the electoral rolls for the territorial 
constituencies in a Province in respect of the 
qualifications of any particular man and any 
question which of several women is to be selected 



^86 



The Government of India Act, 1935. (Schedules). 

for inclusion bIirII be determined in the prescribed 
manner : 

Provided that, if a woman who is entitled by virtue of 
subparagrapli (a) of this paragraph to remain on the roll of a 
territorial constituency changes her place of residence, then 
if she so desires, she may, on any subsequent revision of the 
roll, be transferred to the roll of such other territorial 
constituency as may be appropriate. 

PART V 

The United Provinces. 

General reqmrment as to residence. 

1 — (1) A person shall not be qualified to be included in 
the electoral roll for any territorial constituency unless he is 
resident in the constituency. 

(2) For the purposes of this Part of this Schedule a 
person shall be deemed to be resident in any area if lie ordi- 
narily lives in that area or maintains a dwelling house therein 
ready for occupation in which he occasionally dwells. 

Qualifications dejjendent on taxation. 

2. Subject to the provisions of Part I of this Schedule 
and to any overriding provisions of this Part of this Schedule, 
a person shall be qualified to be included in the electoral roll 
for any territorial constituency if he — 

(a) was assessed during the previous financial year 
to income tax; or 

(h) was, in an area wholly or partly within the 
constituency in which a municipal tax is in force, 

287 



The Indian Constitution Ch. X 

assessed in the previous financial year to mun'cipal 
tax on an income of not less than one hundred and 
fifty rupees per annum. 

Qualifications de-pemUni on jiroperty. 

3. Subject as aforesaid, a person shall also be qualified to 
be included in the electoral roll for any territorial constituency 
if he is the owner or tenant of a house or building in the 
constituency the rental value whereof is not less than twenty- 
four rupees per annum. 

4. Subject as aforesaid, a person shall also be qualified to 
be included in the electoial roll for any territorial constituency 
if he— 

(«) owns land in the constituency on which land 
revenue of not less than five rupees per annum 
is payable ; or 

( h) owns land in the constituency free of land revenue, 
if the land revenue nominally assessed on the land 
for ^determining the amount of rates payable 
in respect of the land, either alone or together 
with any land revenue payable by him as owner 
of other land in the constituency, amounts to 
not less than five rupees per annum ; or 

(r) is a tenant of land in the constituency in respect 
of which rent of not less than ten rupees per 
annum, or rent in kind equivalent to not less 
than ten rupees per annum, is payable; or 

(r?) is an under-proprietor in Oudh of land in the 
constituency in respect of which under-proprietary 
rent of not less than five rupees per annum is 
payable ; or 

288 



The Government of India Act, 1935. (Schedules). 

(«) in the case of a conetitueney comprising any part 
of the Hill Pattis ol Kuniaun, is resident in those 
Hill Pattis and, in the conetituency, either is 
owner of a fee siin})le estate in those Hill Pattis, 
or is assessed to the j ayment of land revenue or 
cesses of any amount in these Hill Pattis, or is a 
Khaikar, 

Educatiunal gualijieaiion. 

5. Subject as aforepaid, a person shall also be qualified 
to be included in the electoral roll for any territorial constitu- 
ency if he is proved in the preEcribed manner to have passed 
the upper primary examination, or an examination which is 
prescribed as the equivalent thereof. 

Qualif.cation by reason of sertice in His Majesty's forces. 

6. Subject as afc resaid, a person shall also be qualified 
to be included in the electoral roll for any territorial constitu- 
ency if he is a retired, pensioned cr discharged officer, non- 
commiseicned officer or soldier of Bis Majesty's regular military 
forces. 

Special provieion as to Shi^kars in the Hill Pattis 

of Kumaun. 

7. Subject as aforesaid, a person {>hall also be qualified to 
be included in the electoral roll for any territorial constituency 
comprising any part of ihe Hill Pattis of Kumaun if he is a 
Shilpkar resident in a village in those Hill Pattis and is in the 
prescribed manner belected and designated as their representa- 
tive by the Shilpkar families of that village. 

C.L. 37 289 



The Indian Constitution Ch. X 

Additional qucdifications for women. 

8. Subject as aforesaid, a person who is a woman shall 
also be qualified to be included in the electoral roll for any 
territorial constituency — 

(a) if she is the pensioned widow or the pensioned 
mother of a person who was an ofEcer, non- 
commissioned officer or soldier of His Majesty's 
regular military forces; or 

(6) if she is proved in the prescribed manner to be 
literate; or 

(c) if her husband pcFssesses the qualifications requi* 
site for the purposes of this paragraph. 

9. In relation to any territorial constituency, a husband 
shall be deemed to possess the qualifications requisite for 
the purposes of the last preceding paragraph if — 

(a) he is the owner or tenant of a house or building 
in the constituericy, the rental value whereof is 
not less than thirty-six rupees per annum ; or 

(b) was, in an area in which no house or building tax 
is in force, assessed in the previous year in the 
constituency to municipal tax on an income of not 
less than two hundred rupees per annum; or 

(6') owns land in the constituency in respect cf which 
land revenue rmcunting to not less than twenty- 
five rupees per annum is payable; or 

(d) owns land in the constituency free of land revenue, 
if the land revenue nominally assessed on the 
land for detenniuing the amount of rates payable 
in respect thereof, either alone or together with 

29Q 



The Government of India Act, 1935. (Schedules.) 

any land revenue payble by him as owner in 
resf ect of other ^ land in the constituencj', 
amounts to not less than twenty-five rupees per 
annum ; or 

( e) is resident in the Hill Pattis of Kumaun and, in 
the constituency, either owns a fee simple estate 
situate in those Hill Pattis or is apsessed to the 
payment of land revenue or ceeses of any amount 
in those Hill Pattis, or is a Khaikar ; or 

(/) is, in the constituency, a permanent tenure holder 
or a fixed rate tenant as defined in the Agra 
Tenancy Act, 1926, or an under- proprietor or 
occupancy tenant as defined in the Oudh Rent 
Act, ]&86, and is hable as such to rent cf not 
less than twenty-five rupees per annum ; or 

{g) holds in the constituency as a tenant, land in 
respect of which a rent of not less than fifty 
rupees per annum or a rent in kind equivalent to 
not less than fifty rupees per annum is pay- 
able; or 

{h) was assessed in the previous financial year to 
income tax ; or 

(t ) is a retired, pensioned or discharged officer, non- 
commissioned officer or soldier of His Majesty's 
regular military forces. 

A'p]plicatioii acceBsary for enrolment in certain cases, 

10 — (1) No person shall by virtue of paragraph five or 
subparagraph (a) or sub-paragraph (h) of paragraph eight 
of this Part of this Schedule, or by virtue of her husband 

?94 



The Indian Constitution Ch. X 

being a retired, pensioned or ^"diecharged officer, non-commi- 
ssioned officer or soldier, be included in the electoral roll for any 
territorial constituency unless application is made in the 
prescribed manner by, or if it is bo prescribed, on behalf of, 
that person that that person should be so included. 

(2) On the preparation 6f the original electoral roll for 
any rural constituency or on any revision of the electoral roll 
for a rural constituency within three years from the commence- 
ment of Part III of this Act, no person shall bj' virtue of her 
hu>sband possessing any of the ether qualifications requisite for 
the purposes of the said pRragraph eight be included in the 
electoral roll unless application is made in the prescribed 
manner by her, or if it is so prescribed, on her behalf, that she 
should be so included, 

Interpretation &c, 

11.— (1) In this Schedule, in relation to the United 
Provinces — 

" owner " does not include a mortgagee or a lessee, 
and <'own" shall be construed accordingly ; 

" tenant " as resppcta any land in a rural area means 
a tenant as defined in the Agra Tenancy Act, 
1926, or the Oudh Rent Act, 1886, as the case 
may be, and does not include a sub-tenant, and as 
respects any house or building means a person 
who occupies it«n payment ot rent, or in the case 
of a house, not situate in military or police lines, 
a person who occupies it rent free by virtue of any 
office, service or employment ; 

" under-proprietor ■' means an under- proprietor as 
defined in the Oudh Rent Act, 1386 ; 

2Q'Z 



The Government of India Act, 1935. (Schedules) 

" Khaikai* " means a person recorded as such in the 
records of rights of laud in the Hill Pattis of 
Kumaun ; 

" building " means a building as defined in the United 
Provinces Municipalities Act, 1916 ; 

" rental value " means the value of a house or building 
based on the amount of annual rent ; 

'i municipal tax " and " house or building tax," mean 
the taxes respectively known by those names 
imposed under the United Provinces Municipali- 
ties Act, 1916, the United Provinces Town Areas 
Act, 1914, and the Cantonments Act, 1924; 

" urban area " means a municipality or notified area as 
defined in subsection (9) of section two, and sub- 
section (2j of section three hundred and thirty- 
seven of the United Provincs MunicipaUtiea Act, 
1916, or a town area as defined in the United 
Provinces Town Areas Act, 1914, or a canton- 
ment ; 

"rural area" means an area which is noj an urban 
area. 
(2) Where property is held or payments are made 
jointly by, or assessments are made jointly en, the members of 
a joint family or joint tenancy, the family or tenancy shall be 
adopted as the unit for deciding whether under this Part ot 
this Schedule the requisite qualj^cation exists, and if it does 
exist, the person qualified shall be, in the case of a joint Hindu 
family, the manager thereof or, if there is no manager, the 
member nominated in that behalf by the majority of the family, 
and in other cases the member nominated in that behalf by the 
family or tenancy concornsd. 

293 



The Indian Constitution Cm. X 

SEVENTH SCHEDULE. 

Legislative Lists. 

List L 

Federal Legislative List. 

3. His Majesty's naval, military and air forces borne on 
the Indian establishment and any other armed force raised in 
India by the Crown, not being forces raised for employment in 
Indian States or military or armed police maintained by Pro- 
vincial Governments; any armed forces which are not forces of 
His Majesty, but are attached to or operating with any of His 
Majesty's naval, military or air forces borne on the Indian 
establishment; central intellligence bureau; preventive detention 
in British India for reasons of State connected with defence, 
external aflfairs, or the discharge of the functions of the Crown 
in its relations with Indian Statea 

2. Naval, military and air force works; local self-govern- 
ment in cantonment areas ( not being cantonment areas of 
Indian State troops ), the regulation of house accommodation 
in such areas, and, within British India, the delimitation ofsuch 
areas. 

8. External affairs; the implementing of treaties and 
agreements with other countries; extradition, including the 
surrender of criminals and accused persons to parts of His 
Majesty's dominions outside India. 

4. Ecclesiastical afl'airs, including European cemeteries. 

5. Currency, coinage and legal tender. 

6. Public debt of the Federation. 



^94 



The Government of India'Act, 1935. (Schedules). 

7. PoEts and telegraphs, including telephones, wireless, 
broadcasting, and other like forms of communication; Post OflBee 
Savings Bank. 

8. Federal Public Services and Federal Public Service 
Commission, 

9. Federal pensions, that is to say, pensions payable by 
th© Federation or out of Fedeial revenues, 

10. Works, lands and buildings vested in, or in the posse* 
ssion of, His Majesty for the purposes of the Federation (not 
being naval, military or air force vrorks), but, as regards pro- 
perty situate in a Province, subject always to Provincial 
legislation, save in so far as Federal law otherwise provides, 
and, as regards property in a federated State held by virtue of 
any lease or agreement with that State, subject to the terms of 
that lease or agreement. 

11. The Imperial Library, the Indian Museum, the 
Imperial War l^Iuseum, the Victoria Memorial, and any similar 
institution controlled or financed by the Federation. 

12. Federal agencies and institutes for the following 
purposes, that is to say, for research, for professional or techni- 
cal training, or for the promotion of special studies. 

13. The Benares Hindu University and the Aligarh 
Muslim University. 

14. The Survey of India, the Geological, Botanical and 
Zoological Surveys of India; Federal meteorological organisa- 
tions. 

15. Ancient and historical monuments: archreological 
sites and remains. 

295 



The Indian Constitution Ch. X 

16. Censue. 

17. Admission into, and emigration and expulsion from, 
India, including in relation thereto the regulation of the move- 
ments in India of persons who are not British subjects domi- 
ciled in India, subjects of any Federated State, or British 
subjects domiciled iu the United Kingdom; pilgrimages to 
places beyond India. 

18. Port quarantine ; seamen's and marine hospitals, and 
hospitals connected with port quarantine. 

19. Import and export across customs frontiers as defined 
by the Federal Government. 

20. Federal railways; the regulation of all railways other 
than minor railways in respect of safety, maximum and 
minimum rates and fnres, station and service terminal charges, 
interchange of traffic and the responsibility of railway admi- 
nistrations as carriers of goods and passengers; the regulation 
of minor railways in respect of safety and the responsibility 
of the administrations of such railways as carriers of goods and 
passengers. 

21. Maritime shipping and navigation, including shipping 
and navigation on tidal waters; Admiralty jurisdiction. 

22. Major ports, that is (o say, the declaration and deli- 
mitation of such ports, and the constitution and powers of Port 
Authorities therein. 

23. Fishing and fisheries beyond territorial waters. 

24. Aircraft and air navigation, the provision of aerodro- 
mes, regulation of air traffic and of ssrodromes. 

296 



The Government of India Act, 1935. (Schedules) 

25. Lif]jhthonse.s, including lightship's, beacons and other 
provision for the safety of shipping and aircraft. 

26. Carriage of passengers and goods by sea or by air. 

27. Copyright, inventions, designs, trademarks and 
merchandise marks. 

28. Cheques, bills of exchange, promissory notes and 
other like instruments. 

29. Arms; firearms; ammunition. 

30. Explosives. 

31. Opium, so far as regatds cultivation and manufacture, 
or sale for export. 

32. Petroleum and other liquids and substances declared 
by Federal law to be dangerously inflammable, so far as regards 
possession, storage and transport. 

33. Corporation, that is to say, the incorporation, regula- 
tion and winding-up of trading corporations, including banking, 
insurance and financial corporations, but not including corpora- 
tions owned or controlled by a Federated State and carrying 
on business only within that State or co-operative societies, 
and of corporations, whether trading or not, with objects not 
confined to one unit. 

34. Development of industries, where development under 
Federal control is declared by Federal law to be expedient in 
the public interest. 

35. Regulation of labour and safety in mines and oilfields. 

36. Regulation of mines and oilfields and mineral develop- 
ment to the extent to which such regulation and development 

C.L. 38 297 



The Indian Constitution Ch. X 

under Federal control is declared by Federal law to be expedi- 
ent in the public interest. 

37. The law of insurance, except as respects insurance 
undertaken by a Federated State, and the regulation of the 
conduct of insurance business, except as respects business under- 
taken by a Federated State; Government insurance, except so 
far as undertaken by a Federated State, or, by virtue of any 
entry in the Provincial Legislative List or the Concurrent 
Legislative List, by a Province. 

38. Banking, that is to say, the conduct of banking 
business by corporations other than corporations owned or 
controlled by a Federated State and carrying on business only 
within that State. 

39. Extension of the powers and jurisdiction of members 
of a police force belonging to any part of British India to any 
area in another Governor's Province or Chief Commissioner's 
Province, but not so as to enable the police of one part to 
exercise powers and jurisdiction elsewhere without the consent 
of the Government of the Province or the Chief Commissioner, 
as the case may be ; extension of the powers and jurisdiction 
of members of a police force belonging io any unit to railway 
areas outside that unit. 

40. Elections to the Federal Legislature, subject to the 
provisions of this Act and of any Order in Council made 
thereunder. 

41. 7 he salaries of the Federal Ministers, of the Presi- 
dent and Vice-President of the Council of State and of the 
Speaker and Deputy Speaker of the Federal Assembly; the 
salaries, allowances and privileges of the members of the 

298 



The Government of India Act, 1935. (Schedules) 

Federal Legislature; and, to such extent as is expressly autho- 
rised by Part II of this Act, the punishment of persons who 
refuse to give evidence or produce documents before Committees 
of the Legislature. 

42. Ofiences against laws with respect to any of the 
matters in this list. 

43. Inquiries and statistics for the purposes of any of 
the matters in this list. 

44. Duties of customs, including export duties. 

45. Duties of excise on tobacco and other goods manu- 
factured or produced in India except — 

(a) alcoholic liquors for human consumption; 

(6) opium, Indian hemp and other narcotic drugs and 
narcotics; non-narcotic drugs ; 

(c) medicinal and toilet preparations containing 
alcohol, or any substance included in sub' 
paragraph (6) of this entr}^ 

46. Corporation tax. 

47. Salt. 

48. State lotteries. 

49. Naturalisation. 

50. Migration within India from or into a Governor's 
Province or a Chief Commissioner's Province. 

51. Establishment of standards of weight. 
62. Ranchi European Mental Hospital. 

299 



The Indian Constitution Ch. X. 

53. Jurisdiction and powers of all courts, except the 
Federal Court, with respect to any of the matters in this list 
and, to such extent as is expressly authorised by Part IX of 
this Act, the enlargement of the appellate jurisdiction of the 
Federal Court, and the conferring thereon of supplemental 
powers. 

54. Taxes on income other than agricultural income. 

55. Taxes on the capital value of the assets, exclusive 
of agricultural land, of individuals and companies; taxes on 
the capital of companies. 

56. Duties in respect of succession to property other 
than agricultural land. 

57. The rates of stamp duty in respect of bills of 
exchange, cheques, promissory notes, bills of lading, letters of 
credit, policies of insurance, proxies and receipts. 

58. Terminal taxes on goods or passengers carried by 
railway or air; taxes on railway fares and freights. 

59. Fees in respect of any of the matters in this list, 
but not including fees taken in any Court. 

LIST II. 

Provincial Legislative List. 

1. Public order ( but not including the use of His 
Majesty's naval, military or air forces in aid of the civil 
power); the administration of justice; constitution and organi- 
sation of all courts, except the Federal Court, and fees taken 
therein; preventive detention for reasons connected with the 
maintenance of public order; persons subjected to such 
detention. 



300 



The Government of India Act, 1935. (Schedules.) 

2. Jurisdiction and powers of all courts except the 
Federal Court, with respect to any of the matters in this list; 
procedure in Rent and Revenue Courts. 

3. Police, including railway and village police. 

4. Prisons, reformatories, Borstal institutions and other 
institutions of a like nature, and persons detained therein ; 
arrangements with other units for the use of prisons and other 
institutions. 

5. Public debt of the Province. 

6. Provincial Public Services and Provincial Public 
Service Commissions. 

7. Provincial pensions, that is to say, pension,*! payable by 
the Province or out of Provincial revenues. 

8. Works, lauds and buildings vested in or in the posse- 
ssion of His Majesty for the purposes of the Province. 

9. Compulsory acquisition of laud. 

10. Libraries, museums and other similar institutions con- 
trolled or financed by the Province. 

11. Elections to the Provincial Legislature, subject to 
the provisions of this Act and of any Order in Council made 
thereunder. 

12. The salaries of the Provincial Ministers, of the Speaker 
and Deputy Speaker of the Legislative Assembly, and, if there is 
a Legislative Council, of the President and Deputy Presi- 
dent thereof; the salaries, allowances and privileges of the 
members of the Provincial Legislature; and, to such extent as is 
expressly authorised by Part III of this Act, the punishment 

301 



The Indian Constitution Ch. X 

of persons who refuse to give evidence or produce documents 
before Committees of the Provincial Legislature. 

13. Local government, that is to say, the constitution and 
powers of municipal corporations, improvement trusts, district 
boards, mining settlement authorities and other local authori- 
ties for the purpose of local self-government or village admini- 
stration. 

14. Public health and sanitation; hospitals and dispensaries; 
registration of births and deaths. 

15. Pilgrimages, other than pilgrimages to places beyond 
India. 

16. Burials and burial grounds. 

17. Education. 

18. Communications, that is to say, roads, bridges, ferries, 
and other means of communication not specified in List I; 
minor railways subject to the provisions of List I with respect 
to such railways; municipal tramways; roapeways; inland water- 
ways and traffic thereon subject to the provisions of List III with 
regard to such waterways; ports, subject to the provisions in 
List I with regard to major ports; vehicles other than mecha- 
nically propelled vehicles. 

19. Water, that is to say, water supplies, irrigation and 
canals, drainage and embankments, water storage and water 
power. 

20. Agriculture, including agricultural education and 
research and protection against pests and prevention of plant 
diseases; improvement of stock and prevention of animal dise- 
ases; veterinary trainiug and practice; pounds and the preven- 
tion of cattle trespass. 

302 



The Government of India Act, 1935. (Schedules). 

21. Land, that is to say, rights in or over land, land 
tenures, including the relation of landlord and tenant, and the 
collection of rents; transfer, alienation and devolution of agri- 
cultural land; land improvement and agricultural loans; coloni- 
zation; Courts of Wards; encumbered and attached estates; 
treasure trove. 

22. Forests. 

23. Regulation of mines and oilfields and mineral deve- 
lopment subject to the provisions of List I with respect to regu- 
lation and development under Federal control. 

24. Fisheries. 

25. Protection of old birds and wilds animals. 

26. Gas and gasworks. 

27. Trade and commerce within the Province; markets 
and fairs; money lending and money lenders. 

28. Inns and innkeepers. 

29. Production, supply and distribution of goods; develop- 
ment of industries, subject to the provisions in List I with 
respect to the development of certain industries under Federal 
control. 

30. Adulteration of foodstuffs and other goods; weights 
and measures. 

31. Intoxicating liquors and narcotic drugs, that is 
to say, the production, manufacture, possession, transport, 
purchase and sale of intoxicating liquors, opium and other nar- 
cotic drugs, but subject, as respects opium, to the provisions of 
List I and, as respects poisons and dangerous drugs, to the pro- 
visons of List III. 

303 



The Indian Constitution Ch. X 

82. Relief of the poor ; unemployment.. 

33. The incorporation, regulation, and winding-up of 
corporations other than corporations specified in List I; un- 
incorporated trading, literarj^, scientific, religious and other 
societies and associations; co-operative societies, 

31. Charities and charitable institutions; charitable and 
religious endowments. 

85. Theatres, dramatic performances and cinemas, but 
not including the sanction of cinematograph films for exhibition. 

36. Betting and gambling. 

37. Offences against laws with respect of any of the 
matters in this hst. 

38. Inquiries and statistics for the purpose of any of the 
matters in this list. 

39. • Land revenue, including the assessment and collec- 
tion of revenue, the maintenance of land records, survey for 
revenue purposes and records of rights, and alienation of 
revenue. 

40. Duties of excise on the following goods manufactured 
or produced in the Province and countervailing duties at the 
same or lov/er rates on similar goods manufactured or pro- 
duced elsewhere in India — 

(a) alcoholic liquors for human consumption ; 

(b) opium, Indian hemp and other narcotic drugs and 
narcotics; non-narcotic drugs; 

( c ) medicinal and toilet preparations containing alco- 
hol or any substance included in sub-paragraph 
(i) of this entry. 



304 



The Government of India Act, 1935. (Schedules). 

41. Taxes on agricultural income. 

42. Taxes on lands and buildings, hearths and winJows. 

43. Duties in respect of succession to agricultural Ian d. 

44. Taxes on mineral rights, subject to any limitations 
imposed by any Act of the Federal Legislature relating to 
mineral development. 

45. Capitation taxes. 

46. Taxes on profeiseions, trades, callings and employ- 
ments. 

47. Taxes on animals and boats. 

48. Taxes on the sale of goods and on advertisements. 

49. Cesses on the entry of goods into a local area for 
consumption, use or sale therein. 

50. Taxes on luxuries, including taxes on entertainments, 
amusements, betting and gambling. 

51. The rates of stamp duty in respect of documents 
other than those specified in the provisions of List I with 
regard to rates of stamp duty. 

5?. Dues on passengers and goods carried on inland 
waterways. 

53. Tolls. 

54. Fees in respect of any of the matters in this list, but 
not including fees taken in any Court. 

CL39. 3O5 



The Indian Constitution Ch X 

List III. 
Concurrent Legislative List. 
PART I. 

1. Criminal law, including all matters included in the 
Indian Penal Code at the date of the passing of this Act, but 
excluding offences against laws with respect to any of the 
matters specified in List I or List II and excluding the use of 
His Majesty's naval, military and air forces in aid of the 
civil power. 

2. Criminal Procedure, including all matters included in 
the Code of Criminal Procedure at the date of the passing 
of this Act. 

3. Removal of prisoners and accused persons from one 



unit to another unit. 



4. Civil Procedure, including the law of Limitation and 
all matters included in the Code of Civil Procedure at the 
date of the passing of this Act; the recovery in a Governor's 
Province or a Chief Commissioner's Province of cl »ims in 
respect of taxes and other public demands, including arrears 
of land revenue and sums recoverable as such, arising outside 
that Province. 

5. Evidence and oaths; recognition of laws, public acts 
and records and judicial proceedings. 

6. xMarriage and divorce ; infants and minors ; adoption, 

7. Wills, intestacy, and succession, save as regards agri- 
cultural lana. 

8 Transfer of property other than agricultural land; 
registration of deeds and documents 



306 



The Government of India Act, 1935 (Schedules). 

9. Trusts and Trustees. 

10. Contracts, including partnership, agency, contracts 
of carriage, and other special forms of contract, but not inclu- 
ding contracts relating to agricultural land. 

11. Arbitration. 

12. Bankruptcy and insolvency; administrators-general 
and oflScial trustees. 

13. Stamp duties other than duties or fees collected by 
means of judicial stamps, but not including rates of stamp duty. 

14. Actionable wrongs, save in so far as included in laws 
with respect to any of the matters specified in List I or List II. 

15. Jurisdiction and powers of all courts, except the 
Federal Court, with respect to any of the matters in this list. 

16. Legal, medical and other professions. 

17. Newspapers, books and printing presses. 

18. Lunacy and mental deficiency, including places for 
the reception or treatment of lunatics and mental deficients. 

19. Poisons and dangerous drugs. 

20. Mechanically propelled vehicles. 

21. Boilers. 

22. Prevention of cruelty to animals. 

23. European vagrancj''; criminal tribes. 

24. Inquiries and statistics for the purpose of any of the 
matters in this Part of this List. 



307 



The Indian Constitution Ch. X 

25. Fees in respect of any of the matters in this Part of 
this List, but not including fees taken in any Court. 

PART IL 

26. Factories. 

27. Welfare of labour ; conditions of labour ; provident 
funds ; employers' liability and workmen's compensation ; health 
insurance, including invalidity pensions ; old age pensions. 

28. Unemployment insurance. 

29. Trade unions ; industrial and labour disputes. 

30. The prevention of the extension from one unit to 
another of infectious or contagious diseases or pests affecting 
men, animals or plants. 

31. Electricity. 

32. Shipping and navigation on inland waterways as 
regards mechanically propelled vessels, and the rule of the road 
on such waterways ; carriage of passengers and goods on inland 
waterways. 

33. The sanctioning of cinematograph films for exhibition. 

34. Persons subjected to preventive detention under 
Federal authority. 

35. Inquiries and statistics for the purpose of any of the 
matters in this Part of this List. 

36. Fees in respect of any of the matters in this Part 
of this List, but not including fees taken in any Court. 



308 



APPKNDICKS. 

GENERAL ADMINISTRATION. 

la 1763 I lie Diwani was conferretl on tlio Conipa)!}^ by 
the Moaluil Emperor, and in l772 the Companj'^ crefited a 
Board of Revenue for Bengal. Up to 1773 the three Presi- 
dencies of Madras, Bomhay, and Be-ngal were separate and 
independent. But in that year a sort of political and adminis- 
trative unification of India was brought about by making 
Madras and Bomba}^ subordinate to the Governor-General 
at Fort William. The Governor-General in Council consisting: 
of four members was empowered to make laws, but these 
were not valid until they were duly registered in the Supreme 
Court. In 1784 the Governor-General's Council came to have 
three members inclndinir the Commander-in-Chief, and the 
Governor's Council too had the same number. 

In 178G the Governor- General was given power to over- 
rule his council in case of disagreement; and the offices of the 
Commander-in-Chief and the Governor-General were combined. 
Another provision that all the members of the Council should 
have the qualification of having served in India for twelve years 
was also brought into force. It was enacted in 1793 that the 
Governor General should not leave India during his term 
of office ( tliis rule was changed in 1925). In 1833 the 
Governor-General of Fort \\'illiam became the Governor- 
General of India. The Act provided for the division of the 
overgrown Presidency of Bengal into Provinces, viz. Fort 
William and Agra, l>ut this did not come into o^'eration. By 
the Act of 1833 a " Law Commission " was aj'pwnted con- 
sisting of Lord Macaula}', Cameron (Barrister), Macleod, I C.S., 



«• 

11 



and Sir William Anderson, I.C.S. The same Act enabled natural- 
born subjects of the Crown to acquire and hold lands in India. 
The year 1853 saw the appointment of a committee in England 
to examine the report of the Law Commission. Among rts 
members were Lord Ro-mill}', Sir J, Jervis, and Lord 
Sherbroke. In 1854 the Provi^ice of Bengal began to have a 
Lieutenant-Governor. A Lieutenant-Governor was sanctioned 
for the Punjab in 1859, The Act of 1854 also empowered the 
creation of Chief Commissionerships wherever necessarj^; and 
under the power so conferred, Burma and C, P., and much 
later Delhi in 1912, came to have Chief Commissioners. In 
1861 a fifth member for the Governor- General's Executive 
Council was appointed. Provincial Legislatures consisting 
of not less than 4 and not more than 8 non-officials were to be 
set up. Tiie Lieutenant-Governor was to be a member of 
the Indian Legislative Council if its meeting was held within 
his Province. An Act of 1870 authorised tlie Governor- 
General to pass regulations for the Provinces without a Legis- 
lative Council. The formal dissolution of the East India 
Company took place in 1870. 

In 1874 a sixth member for the Governor-Generals 
Executive Council was also appointed. In 187G was passed 
the Royal Titles Act conferring on the Queen of England the 
title of Empress of India, 

In 188G a Lieutenant-Governor was appointed for the 
N. W. Province and in 1897 for the Punjab. Among the 
Provinces, "Madras and Bombay enjoyed the qualified privilege 
of non-subordination to the Governor-General," In 1004 the 
sixth Membership of t^lie Governor-General's Council, which 
was abolished in the interval, was reintroduced. By the Minto- 
Morley refti-ms the number of members of the Executive 
Council was raised from two to four in the Provinces. 



Ill 



CONTROL FROM ENGLAND^; 

The Coiut of Projrietors for the Ea.st India Cuinpauy 
provided in the year 1773 a system of Directorial Control 
in matters pertaining to India, hy which there were to be 
tw^enty-four Directois elected for a teim of four }'ears, but 
one fourth of them were to retire every year. A Board of 
Control was instituted in 1784 consisting of six Com- 
missioners who were to be Privy Councillors, the Chancellor 
of the Exchequer, and the Secretary of State. This Board, 
so constituted, was to have control over the Board of Director?. 
In 1793 it was decided that the payment to the members of the 
Board of Control should be from Indian revenues. It was 
also ruled that tw^o junior members of the Board need not be 
Privy Councillors. The number of Directors was reduced 
from twenty-four to eighteen in the year 1853, an<l it was 
also provided at the same time that six of them should be 
appointed by the Crown. Tlie year 1858 saw the important 
step of the formation of the India Council. It was to consist 
of 15 members in all, .seven of whcm were to be appointed by 
the Directors and eight others by the King. Half the 
number were to have the following minimum qualification 
for being a member, viz. the}' should have served India for 
ten years and also should not have left India more than ten 
yeais previous to their ajpointment. They were to get a 
salary of £ 1200, this being chargeable to Indian Revenues. 
Vacancies in the India Council were to be filled in such a 
manner that nine members at least were to have the quali- 
fication mentioned above. 

In 1869 the Secretary of State for India got the power 
of filling vacancies in the India Council, and the term for 
each member was fixed as 10 years. In 1889 the number 



IV 



of members was reduced to ten. A provision of 1907, how- 
ever, ruled that the number should be not less than ten and 
not more than fourteen; and also the term of office and salary 
were fixed as five years and £ 1000 respectively. 

The Crewe Committee was aho appointed at the time 
of the Reform Proposals of 1919. It advocated the abolition 
of the India Council and the creation of simjile advisoiy 
councils. But this was vetoed by the Joint Parhamentary 
Committee under the Presidency of Lord Shelbourne. 

According to the Government of India Act of 1919 there 
were to be not less than 8 members in the India Council, nor 
more than 12 members, and at least half of them were to have 
served or resided in India for at least ten years and were not 
to have left India more than five years previously. These pro- 
visions were meant to secure men with fresh experience of 
Indian life. They were to hold oflice for five years, and could, 
in special circumstances, be continued for another five years. 
They could not be ]\Iembers of Parliament. Their salary 
was to be £1200, while those who were domiciled in Indi.a 
got £ 1800. A contribution of £ 130,500 per annum was paid by 
the British treasury as the estimated cost of the Political 
functions of the Secretary of State for India. Formerly, the 
Welby Commission Report had fixed £ 40,000 under the 
same head. 



THE GROWTH OF THE JUDICIARY. 

In the year 1726 Mayor's Courts were established at 
Madras, Bombay, and Calcutta. These courts had jurisdiction 
in civil and ecclesiastical cases arising from relations between 
Europeans in India. They could have jurisdiction in cases 



concerning Indians only if tliey consented to adjudication. 
In 1765 the Diwani of Beiigal was granted to the Company. 
Under the Diwani civil justice was administered in Mayor's 
Court and the Court of Reijuests, and criminal justice was 
administered in Petty and Quarter Sessions in Presidency towns. 
The year 1773 was important in tliat a Supremo Court was 
established in that year at Fort William in Bengal. It was 
to consist of a Chief Judge and three other judges all of whom 
were to be Barristers of not less than five years' standing. The 
court exercised jurisdiction over the Provinces of Bengal, 
Bihar, and Orissa in all matters civil, criminal, ecclesiastical, 
and administrative. It was empowered to exercise jurisdiction 
over the inhabitants of the country in contracts over Us. 500 
in case the people agreed to refer the dispute to the Su[>reme 
Court. Appeal from the Supreme Court lay to the King in 
Council. The Governor-General and members of the Council 
were made Justices of the Peace. 

An Act of 17S1 exempted the Governor-General and 
Council of Bengal from the jurisdiction of the Supreme 
Court in matters done by them in their public capacity. 
The Governor-General in Council got powers to create 
Provincial Courts of Justice and to frame 'Regulations' 
for them without reference to the Supreme Court. Lord 
Cornwallis introduced various judicial reforms and the regu- 
larisation of three types of Courts including the Sadar 
Nizamat Adalat and Sadar Diwani Adalat. In 1797 a Recorder's 
Courts was established at Madras. In 1800 a Supreme Court 
was established at Madras and in 1823 Bombay got a Supreme 
Court. 

By the Indian High Courts Act of 1861, High Courts were 
established at Madras, Calcutta, and Bombay which amalgamat- 
ed the jurisdiction of the Supreme Courts and the Sadar Adalats. 
The Indian High Courts Act, 1911, empowered the Crown to 



VI 



establish new High Courts. The maxiimim number of judges 
in a High Court was raised to twenty. The Governor-General 
was given power to appoint temporary judges for a term not 
exceeding two years. The Government of India Act of 1915 
and later the Act of 1919 re-embodied these provisions. Of 
the High Court judges one -third shall be Barristers and one- 
third must be members of the Civil Service. A pleader of a 
High Court with not less than ten years' standing at the Bar 
was also eligible for a High Court Judgeship. 



THE PUBLIC SERVICES. 

The Act of 1773 provided that no presents or bribes 
should be accepted and no private trade should be carried on 
b}? the public servants. All those violating this rule were 
liable to be tried by the King's Bench. The following scales 
of pay were also fixed in 1773, viz: — 

Governor-General ,..£25,000 per annum 

Members £10,000 „ 

Chief Justice £ 8,000 „ 

Judges £ 6,000 



The enactments of 1784 provided that the pubhc servants 
violating the laws against bribery, private trade, etc. should 
be tried by three judges, four peers, and six members of 
Parliament. Indians were given little encouragement 
by Lord Cornwallis who was the Governor-General then. 
From 1813 onwards organised military and civil training was 
given. The Haileybury College and the Adiscombe Military 
Academy were established and maintained for this purpose. 
Encouragement to Indians was given only from 1818, and 



Vll 



from 1833 it was decided that fitness was to be the criterion 
of eligibiUty, and natives were not disabled from holding oflfice. 

An Act of 1853 took awaj' the patronage from the Court of 
Directors. In 1854 Macaulay diew up the Civil Service Open 
Competition scheme. By the Civil Service Act of 18C1 all 
appointments were to be made to the Indian Civil Service by 
merit. The Act also gave schedules of the appointments reserved 
for the Indian Service. 

It was provided in 1869 that Indians too were eligible for 
the Indian Civil Servi'ee Examination, but the minimum asfe of 
nineteen years ^Yas too low in the case of Indians. Further 
no provision was made for simultaneous examinations in India 
and England. It was decided in 1870 that Statutor}' Civiliaiis 
were to be appointed from that date and the scale of salaries 
was also fixed. Indians had not made serious inroad into the 
highest rank of civil service. '' In 1878 even the feat of 
competing successfully in the I. C. S. examination in England 
was pract-ically closed by an order of Lord Salisbury which 
reduced the minimum age of candidates from 21 to 19. In 
1870 there were 7 candidates, but in 1880 only two. " 

Lord Lytton had found that since 1870, when an Act of 
Parliament had been passed enabling the Government of India 
to appoint Indians to posts hitherto reserved for the Covenanted 
Civil Service, no serious attempt had been made for putting the 
Act into opeiation. Accordingly in 1879 lie produced his 
plans for a Statutory Civil Service under which a fifth of 
the recruitment for the Civil Service could he made from 
Indians selectfc<l by Provincial Governments, and a pro- 
portion of posts reserved for the Covenanted Civil Service were 
to be hel<l l:>y men of Indian birtli. Lord Ripon continued 
this pohcy, but partly from lack of enthusiasm in Provincial 
government and partly because the wealthier Zamindars were 



vm 



not induced to enter public service, the Statutory Civil 
Service wa.s not a success. It was staffed almost entirely 
by Indians promoted from Uncovenanted Service and was 
abolished in 1891. 

In 1886 Lord DufFerin appointed the Aitchison 
Commission to produce a scheme for doing justice to the 
claims of Lidians to higher and more extensive emploj'ment. 
The effect of the Commission was to establisli the Statutory 
Civil Servi«e, The Commission recommended to the Public 
Service Commission a vested right to certain posts for Indians. 
But this was resisted. In 1889 the maximum age was fixed as 
twenty three years. 

In 1893 Parliament passed a resolution in favour of 
simultaneous examinations in India and England. The local 
Governments objected to simultaneous examinations. In 1912 
a Commission was appointed to investigate into the conditions 
of the Public Service in India under the Chairmanship of 
Lord Islington. It consisted of Mr. Gokhale, Sir Abdur Rahim 
Lord Ronaldshay (now the Marquess of Zetland), Mr. Ramsay 
MacDonald and others as members. The Report was pub- 
lished after India had played a laudable part in the prose- 
cution of the War, and so the report was not considered 
as satisfying the higher ambitions of India. 

Since 1924 the Lee Commission gave certain special 
privileges to the All-India Services on the Reserved side and 
delegated to the Local governments power to reorganise their 
own Provincial subjects in other departments. The Govern- 
ment of India Act 1919, provided for the Public Service 
Commission. The Joint Parliamentary Committee Report 
says: "The Public Service Commissions at present existing 
in India are the Central Public Service Commission established 
under the Government of India Act, and the Madras 



IX 



Service Commission, estahlished under an Acf. of the Mjulraa 
Legislature in 1929. The legi.shition necessary for .setting up a 
PuIjHc Service Commission in tlie Punjab has been passed, 
but the estabUsliment of the Commission awaits an improve- 
ment in the finances of the Province. The White Paper pro- 
poses the continuance of the Central PubHc Service Commi- 
ssion as a Federal organ, and the setting up in each Province 
of a Provincial Public Service Commission. The functions 
proposed for all these Commissions are advisory in character 
and similar to those at present performe<l by the Central and 
Madras Commissions. We regard it as essential that each 
Provincial Government should be able to avail itself of the 
advice of a Public Service Commission." 



THE ARMY. 

"In 1726 the Companj' was authorised as in previous 
charters to a]~>point general and military officers to exercise 
the inhabitants in arms and to exercise Martial Law in time 
of war." (Ilbert). 

" In 1744 war broke out between England and France. 
In 1746 the hostilities extended to India. These events led to 
the establishment of the Company's Indian Arm}' ". 

An Act of 1754 laid down for the Indian forces of the 
Companj' provisions corresponding to those embodied in the 
Annual Engli.sh Mutiny Acts and also provisions for the hold- 
incr of Courts Martial. 

In 1765 under Double Government the Com pan}- assumed 
full power of maintaining and disbanding its military force. 

i *■' 



An Act of 1799 gave the Company further powers for 
raising European troops and maintaining dieeipline among 
them. Authority was given to the Company to train and 
exercise recruits. 

lu 1813 it was declared that the Government of India 
might make laws, regulations, and articles of war for Indian 
troops. That Act also limited the number of troops to 20,000. 
A provision in 1820 enabled the Company to raise and 
maintain a corps of Volunteer Infant r5^ An Act of 1828 
applied the East Indian Mutiny Act to the Bombay Marine, 
and some provisions in 1833 dealt with discipline in the army. 
The 1840 Act consolidated the Indian Mutiny Act and 
empowered the Governor-General to make Regulations for the 
Indian Navy. "The Mutiny led to the introduction of an 
entirely new principle, that of balancing the communities 
inside the army." And from 1858, the patronage of military 
cadetship Avas divided between the Secretary of State and tlie 
India Council. In the same year the Company's troops were 
transferred to the Crown. Before the Mutiny each Presi- 
dency had its separate army. This arrangement was conti- 
nued after the Mutiny also. In the meanwhile, the strength 
of the European army was increased. In 1860 the existence of 
European troops as a separate force was terminated and 
merged in the army of the Crown. The year 180 1 saw the 
constitution of a regular a^rmy for British India. The Naval 
forces of the Company came to an end in the year 1863, and 
in 1884) the Marine Service Act enabled the Gov^er nor-General 
in Council to legislate fur maintaining discipline in the Royal 
Indian Marine. The posts of Commanders-in-Chief in 
Madras and Bombay were abolished in 1893 in which 
year the Armj^ was unified. Many reforms were introduced 
in the Army in 1905 by Lord Kitchener. The year 1917 is 
important in that the bar regarding Indians receiving King's 



XI 



Commissions in tlie Army was removed. But the Army 
expenditure was long engaging the attention of several Indian 
Politicians. As Dr, Berriedalc Keith says, " Unfortunately the 
politicians were presented with a genuine grievance in the 
report issued in October 1020 of the Esher Committee, for 
that document unquestionably could be understood to advocate 
treating the Indian Army as maintained as part of the scheme 
of imperial defence, a conception not adopted in pre-war days. 
It was, of course, in the light of war experience easy to feel 
that the earlier policy had, from a military standpoint, been 
mistaken, but it was not realised that the vital political changes 
rendered it impossible to decide army policy in India without 
regard to Indian national feeUng." 

In 1923 tlie Eight Units Scheme was adopted for India- 
nisation. Under it Indian officers holding King's Commission 
were to be posted in the Eight Units, The Indian Sandhui'st 
Committee under Sir A. Skeene reccmmendrd the establish- 
ment of an Indian counter-part to Sandhurst In 1932 the 
scheme of Indianisatiou of eight more units w;is adopted. The 
Government opened the Indian Military' Academy in DehraDuu 
in the year 1933. 



EXTRACTS FROM PROCLAMATIONS, SPEECHES 
AND WRITINGS &c ON INDIAN POLICY. 

1 . The Court of Directors' Despatch of 1834 to the Governor- 
General : — 

* * * " We deem it of great moment, therefore, that you 
should by positive rules provide that every project or proposal 
of a law shall travel through a dehned succession of stages in 
Council before it is finally adopted; that at each stage it shall 



Xll 



be amply discussed, aud that the intervals of discussion shall be 
such as to allow to each Member of Council adequate opportu- 
nity of reflection and enquiry." 

2. Viscount Pahnerston's Speech on February 12, 1858: — 

" And it is not on the ground of any delinquency on the 
part of the Company, but on the ground of the inconvenience 
and injurious character of the existing arrangements, that I 
propose this measure to the House, It is perhaps one of the 
most extraordinary facts in the history ol mankind that these 
British Islands should have acquired such an extensive domi- 
nion in a remote part of the globe as that which we exercise 
over the continent of India. It is indeed remarkable that those 
regions, in which science and art may be said to have first 
dawned upon mankind, should now be subject to the rule of 
a people inhabiting islands, which at a time when these 
eastern regions enjoyed as high a civilization and as great 
prosperity as that age could ofier, were in a state of utter 
barbarism. 

The existing state of things grew up from a very small 
beginning. The original settlers began with a factory, the 
factory grew into a fort, the fort expanded to a district, and 
the district to a province, and then came collisions with less 
civilized neighbours, injuries to be resented, attacks to be 
repelled, and conflicts which always ended in victory and 
extension of territory. So, gradually, from one transaction 
to another, grew up that state of things in which the East 
India Company found itself invested with vast commercial 
privileges. " 

3. Queen Victoria's Letter to the Earl of Derby, 15th 
August, 1858 : — 

The Queen has asked Lord Malmesbury to explain in 
detail to Lord Derby her objection to the draft of Proclamation 



Xlll 



for India. The Queen would be glad if Lord Derby would 
write it himself in his excellent lan<rua;{p, bearinir in mind 
that it is a female Sovereij^n who speaks to more than 
100,000,000 of Eastern people on assuming the direct Govern- 
ment over them after a bloody civil war, giviiig them pledges 
which her future reign is to redeem, and explaining the prin- 
ciples of her Government. Such a document should breathe 
feelings of generosity, benevolence, and religious feeling, 
pointing out the privileges which the Indians will receive in 
being placed on an equality with the Subjects of the British 
Crown and the prosperity following iji the train of civilisation. 

4. Queen Victoria's Proclamation, November 1, 1858, 

When, by the Blessing of Providence, internal Tranqui- 
llity shall be restored, it is Our earnest desire to stimulate 
the peaceful Industry of India, to promote Works of Public 
Utility and Improvement, and to administer its Government 
for the benefit of all Our Subjects resident therein. In their 
Prosperity will be Our strength; in their Contentment Our 
Security; and in their Gratitude Our best Reward. And may 
the God of all Power grant to Us, and to those in authority 
under Us, Strength to carry out these Our Wishes for the 
good of Our People. 

5. King -Emperor Edward VIFs Proclamation, November 
2, 1908. 

The welfare of India was one of the objects dearest to the 
heart of Queen Victoria. By Me, ever since My visit in 1875, the 
interests of India, its Princes and peoples, have been watched 
with an affectionate solicitude that time cannot weaken. 
My dear Son, the Prince of Wales, and the Princess of Wales, 
returned fi'om their sojourn among you with warm attachment 
to your land, and true and earnest interest in its well-being 
and content. These sincere feelings of active sympathy and 



XlV 



hope for India on the part of My Royal House and Line, on]y 
represent, and they do most truly represent, the deep and 
united will and purpose of the people of their Kingdom. 

6. King-Emperor George V's Announcement at the Corona- 
tion Durbar, December 12, 1911. 

I finally rejoice to have this opportunity of renewing in 
My Own person those assurances which have been given you 
by My predecessors of the maintenance of your rights and 
privileges and of My earnest concern for your welfare, peace 
and contentment. 

7. Lord Hardinge's Speech on February 26, 1916, on invest- 
ing H. H. the Maharajah of Jodhpur with ruling powers. 

"Our policy towards the RuUng Princes, at least during 
the recent years, has been one of sympathy and trust; of 
sj^mpathy with their aims and sentiments and their noble 
traditions; of trust in their fervent loyalty to the Person of the 
King-Emperor and to the Power whose protection they enjo3\ 
We have recognized that if a state is to be ruled justly and 
well and to be the source of real help to the British Empire, 
it is only through the Ruler himself, supported by his Sirdars 
and people, that these results can be obtained. Irksome 
restrictions on the exercise of Sovereign powers are apt to 
chafe and irritate a proud and sensitive spirit with results 
disastrous, not only to the Ruler and his people, but also to the 
Empire at large. We have, therefore, made it our aim to 
cultivate close and friendly relations with the Ruling Princes, 
to show by every means that we trust them and look on them 
as helpers and colleagues in the great task of Imperial rule, 
and so to foster in them a spirit of responsibility and pride in 
their work which no external supervision can produce. " 

8. H. II. the Maharaja of Bikaner's Speech at the Ruling 
Princes' Conference on November 10, 1917. 



XV 



" It can never be too often emphasised that we represent 
ahont one-tliinl ol" the Indian Empire's pojinlation, and 
that no scheme I'ur the progress of India be roj^arded 
as satisfactorj' or complete, which does not take into consi- 
deration questions relatinf^ to these important territories 
outside British India. We feel that we too must keep a 
definite goal in front of us, and whilst it is essential that our 
rights and privileges, our position as allies and friends, 
guaranteed to us by solemn treaties and engagements with the 
British Government remain unaltered, our States cannot 
afford to lag behind in the general advance which India's 
association with Great Britain alone has rendered possible. 

It is for these reasons that we are now all the more 
anxious to see the early establishment of a Constitutional 
Chamber which may safeguard the interests and rights of our- 
selves and of our States. " 

9, Montagu-Cheimsford Report on Indian Constitutional 
Reforms. 

" On the other jiand, it seems to us that, when a Council of 

Princes has been established and when a Council of State and 

a Privy Council have been created, the machinery will exist 

for briurrinn the senatorial institutions of British India into 

closer relations when necessary with the Rulers of the Native 

States. Matters afTecting the Native States generally, or 

the Native States and British India in common, or the 

Empire, might, as we have seen, be referred to the Council 

of Princes. It would thus be possible for the Viceroy when 

he thought fit, to arrange for joint deliberation and discussion 

between the Council of State and the Council of Princes, or 

between representatives of each body. He might also invite 

members of the Council of Princes to serve on committees of 

the Privy Council, " 



XVI 



10. Preamble to the Government of India Act, 1919. 

"Whereas it is the declared policy of Parliament to provide 
for the increasing association of Indians in every branch of 
Indian Administration, and for the gradual development 
of self-governing institutions, with a view to the progressive 
realisation of responsible Government in British India as an 
integral part of the Empire: 

And whereas progress in giving effect to this policy can 
only be achieved b}^ successive stages, and it is expedient that 
substantial steps in this direction should now be taken; 

And whereas the time and manner of each advance can 
be determined only by Parliament, upon whom responsibility 
lies for the welfare and advancement of the Indian peoples: 

And whereas the action of Parliament in such matters 
must be guided by the co-operation received from those on 
whom new opportunities of service will be conferred, and by 
the extent to which it is found that confidence can be reposed 
in their sense of responsibility: 

And whereas concurrently with the gradual development 
of self-governing institutions in the Provinces of India, it is 
expedient to give to those Provinces in provincial matters the 
largest measure of independence of the Government of India 
which is compatible with the due discharge b}^ the latter of 
its own Responsibilities, etc." 

[N'utc: — This Preamble was not repealed by the 
Act of 1935. ] 



XVll 



DRAFT INSTRUMENT OF ACCESSION 

The Instrnnient of Accession of ( full iianips and title ). 

Whereas the proposals for the estabUshment of a federa- 
tion of India composint^ of snch Indian States as may accede 
thereto and the provinces of British India constituted as 
antonomons provinces have been discussed between tlie 
representatives of His Majesty's Government, of tlie Parliament 
of the United Kingdom, of British India and of the Rulers of 
Indian States. 

And whereas those proposals c^^ntemplated that the 
Federation of India should lie constituted bj'' an Act of the 
Parliament of the United Kingdom and b}- the accession of 
Indian States. 

And wh-^reas provision for the constitution of Federation 
of India has now been made in the Government of India Act 
of 1935, but it is bj' that Act provided that the Federation 
shall not be established until such date as His Majesty may 
b}^ proclamation, declare and siich declaration cannot be made 
until the requisite number of Indian States have acceded to 
the Federation. 

And whereas the said Act cannot apply to any of my 
territories save by virtue of my consent and concurrence 
signified by my accession to the Federation, 

Now therefore I, (full name and title, ruler of ), in 

the exercise of my sovereignty in and over my said State, for 
the purpose of co-operating in the furtherance of the interests 
and welfare of India by uniting in a federation under the 
Crown by the name of Federation of India with the provinces 
called Governor's Provinces and with the provinces called 

A 3, 



XVlll 



Chief Commissioner's Provinces and with the Rulers of other 
Indian States, do hereby execute this my Instrument of 
Accession and 

( 1 ) 1 hereby declare that, subject to His Majesty's accept- 
ance of this Instrument I accede to the Federation of India 
as established under the Government of India Act of 1935, 
( hereinafter referred to as the Act) with the intent tliafc His 
Majesty the King, the Governor-General of India, the Federal 
Legislature, the Federal Court and any other Federal au- 
thority established for the purposes of the Federation shall, 
by virtue of this, my Instrument of Accession, but subject 
alwaj'S to the terms thereof and for the purposes only of the 
Federation, exercise in relation to the State of ( hereinafter 
referred to as " this State " ) such functions as may be vested 
in them hy or under the Act. 

( 2 ) I hereby assume the obligation of ensuring that due 
effect is given to the provisions of the Act within this State 
so far as they are applicable therein by virtue of this my 
Instrument of of Accession. 

( 3 ) I accept the matters specified in the first schedule 
hereto as the matters with respect to which the Federal 
Legislature may make laws for this State and, in this Instru- 
ment and in the said first schedule, I specif}^ the limitations 
to which the power of the Federal Legislature to make laws 
for this State and the exercise of the executive authority of 
the Federation in this State are respectively to be subject. 
Whereunder the first schedule hereto the power of the Federal 
Legislature to make laws for this State with respect to any matter 
specified in that schedule subject to a limitation, the executive 
authority of the Federation shall not be exercisable in this 
State with respect to that matter otherwise than in accordance 
with and subject to that limitation. 



XIX 



( 4 ) The particulars to enable due etiect to be giveu to 
the provisions of sections 1-17 and 141) of the Act are set forth 
in the second schedule hereto. 

( 5 ) Reference in this Instrument to laws of the Federal 
Legislature include references to Ordinances promulgated, Acts 
enacted and laws made by the Governor- General of India 
under sections 42 to 45 of the Act inclusive. 

( 6 ) Nothing in this lustrumeut aflects the conti- 
nuance of my sovereignty in and over this State, or save as 
provided by this Instrument, or by any law of the Federal 
Legislature made in accordance with the terms thereof the 
exercise of any of my powers authority and rights in and over 
this State. 

( 7 ) Nothing in this Instrument shall be construed as 
authorising Parliament to legislate for, or exercise jurisdiction 
over this State, or its Ruler, in any respect, provided that 
the accession of this State to the Federation shall not be afiected 
by any amendment of the provisions of the Act mentioned in 
the second schedule thereto and the references in this Instru- 
ment to the Act shall be construed as references to the Act as 
amendent shall, unless it is accepted by the Ruler of this 
State in an Instrument supplementary to this Instrument, 
extend the functions which by virtue of this Instrument are 
exercisable by His Majesty or any Federal authority in relation 
to this State. 

( 8 ) The schedules hereto annexed shall form an 
integral part of this Instrument. 

( 9 ) This Instrument shall be binding on me as from 
the date on which His Majesty signities his acceptance thereof, 
provided that if the Federation of India is not established 



XX 

before the day of. and this Intrument shall ou that 

day become null and void for all purposes whatsoever. 

(10) I hereby declare that I execute this accordingly 
any reference in this Instrument to me; or to the Ruler of 
this State, is to be construed as including a reference to my 
heirs and successors. This Instrument of Accession ( then 
follows the attestation to be drawn with all due foimality 
appropriate to the declaration ol a Ruler). 

Additional paragraph for insertion in proper cases. 

Whereas I am desirous that functions in relation to the 
administration in this State of laws of the Federal Legislature 
which apply therein shall be exercised by the Ruler of this 
State and his officers and the terms of an agreement in that 
behalf have been mutually agreed between me and the 
Governor-General of India and are set out in the schedule 
hereto, now therefore I hereby declare that the said agreement, 
when executed, shall be deemed to form part of this Intrument 
and shall be construed and have effect accordingly. 

( b ) The provisions contained in Part VI of the Act 
with respect to interference with water supplies, being sections 
130 to 133 thereof inclusive, are not to apply in relation to 
this State; 

( c ) Whereas notice has been given to me of His 
Majesty's intention to declare in signifying his acceptance of 
this my Instrument of Accession that the following areas are 
areas to which it is expedient that the provisions of sub-section 
( 1 ) of section 294 of the Act should apply now therefore I 
hereby declare that this Instrument is conditional upon His 
Majesty making such a declaration. 



XXI 



SELECT OPINIONS ON CONSTITUTIONAL QUESTIONS. 

1. Thompson and Garret cu the yimon Ccmmissiou Keport 
( in the Rise and Fultilment of British Rule in India ). 

'* The Simon Report — a document unhappy in form and 
in the circumstances of its appearance — hke tlie White Paper of 
three years later, was written for British pohticians, but chietly 
read and discussed by Indians amon^jst whom it could only 
arouse hostility. Tho first volume reiterated, in somewhat 
sentious fashion, facts known to most people interested in 
India. But the emphasis was laid deliberately upon the 
diversity of the Indian people and their communal dissensions, 
while the account of recent events wholly disregard the depth 
and intensity of the nationalist feeling. The second volume 
surprised all Indians by being practically unanimous, although 
the three English parties were equally represented on the 
Commission. This confirmed the idea that all Englishmen, 
once they are in oflice, take the same view about India, The 
proposals of the Commission were of a conservative character 
and such innovations as they contained had already been dis- 
counted by moderate opinion both in England and India Dyarchy 
was condemned; but the Provincial autonomy, which was to 
take its place, was carefully safeguarded by the special powers 
of the Governor, and by the authority left to the Central 
Government. No efTective change was suggested in the 
central executive until the States were prepared to come into 
a Federation, and the country was capable of defending her- 
self, two provisos which were taken as clearly deferring the 
transfer of authority for a generation or more. Indian 
nationalists could not be expected to consider such proposals 
seriously. Their status was left unchanged, and their future 
would have been dependent upon two factors neither of which 



xxu 



was under their control. The Report suggested an end- 
less series of disputes between Provincial legislatures and a 
British-controlled Central Government which in each Province 
would have its own representative in the person of the Gover- 
nor and the members of the Imperial services. 

2. Thompson and Garret on the "White Paper". 

" The document was written for the British politician 
with the whole emphasis laid upon the safeguards against the 
dangers implicit in the new experiment, and without any 
attempt to win Indian support or interest. The safeguards 
were made as full and explicit as possible; on most disputed 
points the Government decided against the Indian delegates. 
There was no concession to Indian demand for some voice 
in military policy, while the future of the Civil Service was 
left to be reconsidered after five years. Finally the question 
of future time-table was to remain in the hands of the British 
Government. There was no suggestion that the safeguards 
would automatically ;come to an end. Inauguration of the 
Federation was made subject to a number of vague conditions 
which would be interpreted by the Government A docu- 
ment of this kind was not likely to rouse much enthusiasm 
in India, and the future of Federation of India, one of the 
greatest experiments the world has ever seen, seems hkely 
to begin its life amidst the recriminations of its parents." 

3. Dr. A. B. Keith on Dominion Status: — 

"Any doubt which might have existed as to the sense 
of the declaration of 1917 disappeared when India was 
accorded a place in the League of Nations together with the 
Dominions. It was therefore only a formal recognition of an 
inevitable conclusion, when in 1929, with the permission of the 
British Government, Lord Irwin asserted that Dominion Status 



XXlll 



was the ultimate goal of Britibh polio}' for Iivlia, an 
apsiirance reiterated by Lord Willin^rdcn in 19.S3. Is'cr did 
tlie Secretary' of State for India rejuidiate this reading f>f liie 
situation when on November 22, 1933, he insisted that 
Dominion Status was not the immediate end of the (lovern- 
mentdl proposals nor did it mark the next step in In<lian 
reform. 

"It is, however, clear that the assurance given b}' Lords 
Irwin and Willingdon are read as subject to the paramount 
principle asserted in 1917 that India must remain an integral 
part of the British Empire, and that Dominion Status must 
not be held to implj'' the right to secede. Such a right would 
be wholly incompatiable with the position of the Indian 
States, whose accession is esseritial for the formation of the 
ptroposed federation, for, the Piinces vidue in tlie highest 
deo-ree their direct relations with the Crown, But aj^art from 
this point it is clear that, if Dominion Status were at once to 
be granted and enjoyed by the Federation, the Princes would 
be precluded from entering it." 

"The Manchester Guardian." 



I NDEX 



(Note: — In somo caso?, tho numlier of tlio [ago is noted 
only to facilitate reference to the relevant Sections of tho Act.) 



jaLccession of States 

Accounts — Indian Home... 

Acquisition of territory — By Fedenition, 

— By Railway. 
Acts of Parliament — Miscellaneous relating to India 
Act of 1773 (See Kegulating Act.) 

„ 1784— 8 

„ 1813— 8 

,, 1835-- 8 

., 1853— 8 

„ 1859— 9 

„ 1861— 9, 10 

„ 189-2— 10 

„ 1909—10, 11. 



... (See States) 
(See 'Auditor') 

83, 20G. 

87, 207. 
i — ix 



Aden 
Administration 



65, 100, 171, 246. 
i — ii. 



General ... 

Administrative Relations between Federation and 

Units ... ... ... 71-74, 182-188. 

Adviser— Financial ... ... 53, 57, 134—135, 148. 

Advisers of Secretary of State ... 98—99, 239-240. 

Advisory jurisdiction of Federal Court. 92, 220—221. 
Advocate-General of India 



Advocate-General of Provinces 
Ao-a Khan Memorandum ... 
Agency functions of Governors 
Aitchison Commission 



.53, 54, 135, 138. 
...64, 164. 167. 
44—46. 



71, 183. 
viii. 



XXVI 



All-Parties Coufereuce ... 




2.5-27 


Anglo-Indian: — 






Claims in Services ... 




91, 95. 


Representation in Legislatures ... 




107, 262, 266, 




(See Franchise also,) 


Army— Growth of 




ix— .xi. 


Army Act ... 




68, 179. 


Assembly — Federal 




(See Legislature). 


„ Indian Legislative 




14. 


Assent to Bills 




67, 146, 


Attlee — Major 




4P. 


Auditor-Geaemd of India... 




...81, 82, 205. 


„ „ of Provinces 




82, 205. 


Auditor of Indian Home Accounts ... 




82, 205. 


l^aroda~H. H. the Gaekvcar of 




36, 


Barristers 




48, 


Barristers— Eligibility of for Judgeship 


90, 


92, 96, 213, 223. 


Bhopal— H. H. The Nawab of ..'. 




122. 


Bikaner—PI. H. The Maharaja of ... 


3.5, 


88, S8, 122, xiv. 


Birkenhead^The Earl of 




... 22, 24, 27. 


Board of Control 




8, iii. 


Borrowing ... 




81, 205. 


British interests 


(See 


1 'Discrimination'.) 


Broadcasting... 




73, 187. 


Bryce —Viscount 




1. 


Burma ... 38, 43, 52, 62, 69, 80, 


81, 131, 180,204. 


Butler Committee 




... 25, 27— SO. 



CJaleutta — Supreme Court at ... ... 7, 8, v. 

Chamber of Princes ... ... 17, 37, 243, 244. 

Chelmsford — Lord ... ... ... 11 — 13, 15. 

Chief Commif^sionera ... 12, 49, 65, 117, 170, 171. 

Civil Services ... ... 94—96, 227, vi— ix. 

Commander-in- Chief ... 34, 49, 93, 116, 117, 226, x, 



XXVll 

Commercial Discrimination ... ( See DiscriminHtion.) 

Commissions — Army ... ... 51, 94, 125, 22<'->, xi. 

Communal Award ... ... ... 40, 41. 

Connaught~H. R. H. The Duke of ... ... 16, 17. 

Constitutional amendments ... 10.3 — 104-, 254. 

Contracls and Suits ... ... 82—^,205—208. 

Coorg ... ... ... C5. 170, 263, 264. 

Corporation tax ... ...75, 105, 191, 194—195. 

Council of India 10, 47, 98, iii — iv, ix, x, xv. 

Council of Ministers — Federal ... ... 51, 127. 

,, ., ,, Provincial ... ... 6"^, 163. 

Council 0^ State ... (See Federal Legishlure.) 

Court — Federal (Constitution, functions, 

jurisdiction &c) ...62, 89, 1^0-92, 1(0, 210. 211—221. 

Court of Directors ... ... ... iii, xi. 

Courts— Provincial High. 10, 12, 92, 03, 221— 226, v, vi. 

Crewe Committee ... ... ... 13, i v. 

Crown and States ... ... ... (See States ) 

Cnrzon — Lord ... ••• ... 36. 



avidson Committee ... ••■ 40,42. 

Deadlock — provisions relating to. 61, 62, 65, 1;'9— 161, 170. 

Defence. ... ... 42,45,62,58,129,148. 

Defence Services ... ... ... 93, 226. 

Dicey ... ... ••• ••■ ^» "• 

Discrimination— provisions 

re^-ardincr ... 52,68-71,101,131,160-182,251. 

Disqualifications for membership &c. 55, 107, 110, 140, 264. 

Diwaui ••• ••• ••• '^ '> ^. 

Dominion Status. ... 19, 26, 33, 44, xxiii. 

Duties— Excise, Stamp &c.... 74-76, 188-192, 195-196. 

Dyarchy ••• ••• ...14,22.34,47. 

Elcclesiastical affairs. ... 45,48,52,58,71,129,148. 

Edward VII— King Emperor ••• ... xiii. 



XXVlll 



Eddy and Lawton 
Electorates ... 
Esher Committee 
European — Definition of 
Excluded areas 
Executive — Federal 

External affairs 



247, 261-279, 285-293. 

. . . ••• XI 

264 

58, 59, 65, 149, 153, 169-170. 

...51-53, 71, 72,73, 124-136, 

182, 183, 184, 185. 

52, 58, 71, 129, 148. 



i»^ailure of Constitutional machinery 

Federal Authorities — Creation of 

Federal Constitutiony 

Federal Executiv^e 

Federal Judiciary 

Federal Legislature 

Federal Railway ... ,,. 

Federal Units 

Federalism 

Federation — Proclamation regarding. . . 

Financial Relations between Federal Units. 

Financial Statements and Bills — 

Federal... 

Provincial 
Foreign Jurisdiction 
Foreign Relations 
Franchise 



(See Deadlock). 

106,260. 

2-6 

(See' Executive"). 

(See 'Courts'). 

(See 'Legislature'j. 

(See 'Railway'). 

49 

37 

50, 117 

74-8], 188-205. 

57-59, 147-151. 

65, 168. 

101, 247-251. 



...(See 'External Affairs') 
40, 100, 110, 246-247, 285-293. 



Gcandhi— Mahatma ... ... ... 38, 39, 41. 

George V — King Emperor ... ... 16, 45, xiv. 

Government of India Act, 1919 — continuance of some 

sections during the transitional period ... 106, 113. 

— Preamble to. 13, xvi. 

— Provisions of. 13-15. 

—Repeal of. 106, 107. 



}) 



ft 



>> 



>) 



}} 



}) 



>) 



}) 



XXIX 



... 102,253. 

G3, 162. 

1G8. 

280. 

71,183. 

r)3-65, 1G3-170 

65,170. 

...63, 163-165. 



40, 6 



Governor — Acting or temporary 
— Appointment of 
— As.seut to Bills by 
— Customs privileges to 
— Functions of as Agent to the G. G. 
— Powers of — Ex'3cutive, Legislative. 
— Proclamation by 
— Special responsibilities of 

Governor's Provinces 

Governor- General — Acting or temporary 

— Acts passed by 

— Appointment of 

— Assent to Bills by ... 

— Customs privileges to 

— Powers of : — 

Executive 51, 52, 53, 73, 74, 76, 86, 80, 

124-13(3, 207, 209, 210 (See also Federal 
Executive). 

Powers of :^ 



2, 117, 102. 

102, 253. 

61, 158. 

49, 116. 

57, 146. 

280. 



>> 



1. General ... 54-60, 


139-154.1 

• • 


2. Legislative ... 60-61, 


154-159. 


„ — Procla7uations by... 61, 62, 


159-161. 


Governor-General— Reference to Federal Court by 


92, 220. 


„ ,, — And Pteserve Bank 


79, 203. 


» >j — Special respon.siblities of 52, 57. 58, 130- 


-132,147. 


Huiley — Sir Malcolm (now Lord Ilailey) 


19, 44. 


Hardinge — Lord 


36, siv. 


Hartog — Sir Philip 


33. 


High Commissioner fur India 


15. 


,, „ — Appointment of... 


102, 253. 


-Start- of 


96, 232. 


High Court ( See Court ) 





XXX 



Hoare — Sir Samuel ... ... ... 42, 43. 

( For views of &c<, see Notes to Sections). 

Income-tax ... ...74-75,189-191,193-196. 

ludemuity for Officers ... ... ...98,237-238. 

India Council ... ... (See Council of India). 

Indian Constitutional Reforms Report ... 13, 15, xv. 

Instrument of Accession ... xvii — xx ( See States also ). 

Instrument of Instructions. 17, 52, 64, 182-133, 156, 164. 

luter-Pi ovineial Co-operation ... ... 74, 188. 

Irwin— Lord... ... ... ...23,33,88,39. 

Islington — Lord ... ... ... viii. 

aj^ayakar— Mr. M. R. ... ... ... 42. 

Joint Parliamentary Committee ... ... 43-48. 

(See also Notes to Sections), 

Joint Select Committee ... ... ... 1-3. 

Judges— District and Subordinate ... ...96,232-233. 

Judicature ... ... ... ... (See Courts) 

Judiciary — History of the ... ... iv-vi. 



:eith— Dr. A. B. ... ... . . . 44, xi, xxii. 

Xj^and acquisition— Compensation for ... 102, 252. 

Law Commission ... ... ... 8, i, ii. 

Lee Commission ... ... ... viii. 

Legal matters— Provisions for miscellaneous 100-102, 247-253. 
Legislative Lists ... 66,111,172-173,294—308. 

Legislative Powers ... ... 65-71,171-182. 

Legislative Procedure ... ... 56-60, 142-154. 

Legislature — 
Federal: — 

Constitution, qualifications for 

membership &c. ... 53-56 136-142. 
Provincial: — 

(i) Constitution, qualifications for 

membership &c. 64-66,107-110,166 168,261-279. 

(ii)Seats&c. ... ... ... 281-284. 





11. 




43. 


40 


,42. 


36, 


vii. 




• 

1. 


31, 


viii. 


IH. 


137. 


70-71, 


182. 




10. 



XXXI 



Lieutenant-Governor 
Linlithgow— The Marquis of 
Lothian Committee 
Lytton— Lord 

3YEacaulav— Lord 

Mac Donald — Mr. Ramsa}' 

Harriot- Sir John 

Medical qualifications 

Meston — Sir Jnmes (afterwards Lord) 

Ministers ... (See Coaacil of Ministers), 

Minorities ... ... 38, 52, 104, 130, 163. 

Minto— Lord ... ... ...10-11,28,36. 

Montagu — Mr. E. S. ... ... ... 18. 

Montagu— Clielmsford Reforms ... ... 11-15. 

Morley — Lord ... ... ... 10-11. 

Muddiman Committee ... ... ... 19-22. 

I^J'aval Discij'line Act ... ... ... 67, 175. 

Nehru—Pandit Motilal ... ... ... 22. 

Nehru Report ... ... ... 23, 25-27. 

Nizam— His Exalted Highness the ... ... 22, 23, 28. 



rdera in Council ... ... 104-105, 257-258. 

Ordinances— by G. G. ... ... 60.61,154-157. 

n — by Governor ... ... 169. 

Orissa ... ... ... 40, 62, 100, 162, 246. 

3E*almer.=!ton — Lord ... ... ... 12. 

Paramountcy and Supremacy 22. 23, 25, 27—30, 242—245. 

Patel -Mr. V. J. ... ... •■. 22. 

Patiala—n H. The Maharaja of ... ^ ...37,122,244. 

( See also Notes to Sections.) 

Police ... ... ..• 64. 94, 165, 26). 

Political Department ... ... ... 96. 233. 24C. 

Poona Pact ... .t. #♦• ••• 41, 



XXXll 



Previous sanction of the G. G. 

and Governor 68, 72, 76, 79, 98, 177-179, 193, 203. 

Prime Minister of England — Opinions of ... 31, 32, 40, 

Privy Council — Appeals and applications to &c. 70, 71, 91, 220. 
Proclamations... 62, 65, 66-07, 159-161, 170, 173-175. 

Proclamations and Royal Messages ,,^ 9, 16, 17, 37, 44. 

Protection of existing officers ... ... 96,223. 

Provinces — Administration of, boundaries of, 

creation of new &c. ...62-65, 100, 162-171, 246. 

Public Debt Charges ... ... 58,148. 

Pubhc Services — History of the ... ... vi-ix. 

Public Service Commission — 

Federal and Provincial ... 97-98, 235-237. 

History of the ... ... viii, ix. 



aihvay-Definitions ... ... ... 259. 

Piailway Authority— 75, 86-90, 106,111-112, 191,207-211,260. 

Eailway rates ... ... ... 88-89,209. 

Railway Tribunal ... ... ...89,210-211. 

Reading— Lord ... ... 17, 22, 23, 24, 251. 

Regulating Act (of 1773)... ... ...7, i, iii, v, vi. 

Reservation of Bills ... ... 57,146,156,168. 

Reserve Bank ... ... ... 79, 203. 

Revenue Appeals ... ... ... 101, 251. 

Round Table Conferences ... ... 35, 39,41. 

Safeguards... (See ' Deadlock' and 'Discrimination'). 

Sapru-The Rt. Hon'ble Sir Tej Bahadur 20, 24, 26, 42, 44, 245. 

Scheduled Castes ... ... 110, 261, 265, 266, 283. 

Secretary of State — Advisers, recruitment of 

Reserved Services by &c. ... 95,98-99, 231, '^39-41. 

Superintendence b}'- ... ... 52, 133. 

Services — Railway ... ... 97, 231. 

Simon Commfssion ... ... 24, 30-S5, 247, xxi. 

Sind ... ,.. ... 27, 38, 100, 246. 



xxxm 

Sinba— Mr. S. P. (afterwards Lord) ... 10, 16, 24. 

States — 

— Accession of ...50, 51, 100. 118-123, 160 
— Adniiiiistintive rel.'iticms of.., 71-74, 182-187. 

— AssiiMimeiit of taxes ... ... 7-i-77. 

— Committee (See "Butler Committee"). 
—Contributions by ... 77-79.196-202. 

— Crcwn and 49, 58, 77-79, 83, 85, 114-116, 149, 171. 

196-202. 

—Crown and Indian States 99-100, 241-240. 

—Definition of Federated State ... 51,1-0. 

— Definition of Indian State ... 258. 
—Dignity of Ruleis &c. 52, 59, 131, 132, 15S, 163. 

— Entry of into Federation ... 49, 50, 109, 117. 
— Execution of Federal Laws in 

50, 51, 124-126, 182-187 (See also "Administrations"). 

— Exemption from Federal taxation of ... 80, 204. 
— Federal Court and States 

90,91,92, 213,214. 215, il7, 218, 219, 220, 2J1. 
— Financial relations ... 74-7 9, 188-196. 

—High Courts in ... ... 92,221. 

— Hi.s Miije.sty's Representative 

with ... ... 49, 89, 100, 114, 115, 245. 

— Legislative relations of with 

Federation ... 65, 66, 67, 152, 171-173. 175 176. 
—Letter of Uequest to ... 91, 186, 219. 

— Ministers in Federated ... ... 55. 

— Oath of representatives from ... 280, 281. 

— Privileges and immunities... 78 79, 199-202. 

—Railways and ... ... ... 88.89,209. 

— Representation in Federal 

Legislature ... ... 53, 108. 136, 267-279. 

— Hulers of ... ... ... 59, 153. 

—Table of Seats for ... ... 273-279, 



xxxiv 



States: — 



—Treaty rights of ... ... 241-245. 

(See "Paramountcy" and "Butler Committee" also) 



— Water Supplies 
State subject 
Suits 

Sunda — Mr. E S. 
Supreme Court 
Surcharges 
Swarajya Party 

TTransitional Provisions ... 
Treaties — with Indian States 
Tribal areas... 

XJnited Provinces 
Franchise 

"XTictoria— Queen Empress 
Visweswarayya — Sir M. 

^^TU'ar— The Great of 1914. 

Water Supplies 

White Paper 

Willing Ion — Marquis of ... 

Women Franchise 



... (See Water Suj plies). 

... 97, 10', 110, 234, 281. 

... 84, 85, 206. 

212, 214, -220. 

75, 190, 193 195. 
IQ 29 

105 106,259. 

...241-242, (See "States"). 

52,58,59, 71, 73, 129, 148, 153. 



• « • 






62, 


162. 


• •• 






287 


-293. 


• • • 






xii, 


xiii. 


««• 






• • • 


12. 


• » * 






- r-^ 


12. 


« • • 






... 73 74, 


187. 


« • » 




43, 


45, 46, 47, 


xxii. 


• • • 






... 39,44 


, 46. 


• • • 


285, 


286, 287, 290, 


292. 


(See 


also 


'Fi 


iiuchise"). 





ERRATA. 



Page. Line. Corrections. 

for 'paiiiciples' read 'principles', 
insert comma after 'liealth'. 

,, inverted commas after 'intervar, 
for 'Enqiury' i-ead 'Enquiry'. 

insert dots before '7'. 

for 'subiect' lead 'subject', 
insert 'of before 'Indian'. 
„ comma before 'State'. 
„ comma after 'experience', 
for *woud' read 'would'. 

, 'subsequently' read 'subsequently', 
omit 'the' before '5-3-31'. 
for 'for' read 'far'. 
,, 'relevent' read 'relevant', 
read thus: — "prevention of action subjecting 

British or Burmese goods to ". 

65 ... 24 ... insert *a' after 'be'. 

for 'so foi-' read 'so far'. 
,, 'subsides' read 'subsidies'. 
,, 'prastice' ,, 'practise'. 
„ 'liad' „ 'has'. 

,, 'meance' „ 'menace', 
for 'Sezerainty' read 'suzerainty'. 
„ 'the the' „ 'the'. 

,, 'coviction' ,, 'conviction, 
insert 'of the' before 'Province'. 
„ 'to' after 'letter'. 



1 


... 13 


14 


... 23 


18 


... 11 


19 


... 9 


21 


... 10 


22 


... 25 


23 


... 13 


25 


... 13 


29 


... 27 


32 


6 


)> 


... 17 


38 


... 29 


49 


... 5 


50 


... 18 


52 


12&13 



>• 


)} 


69 . 


.. 6 


71 


.. 3 


72 


.. 18 


73 . 


.. 13 


78 . 


.. 14 


94 . 


7 


>» 


.. 15 


108 


.. 9 


122 


1 




/,>E/ge. Line. ;. ConREcnoNs. 

145 ... 9 ... for 'is' read 'in'. 
* 195 ... 20 ... „ 'form' read 'from'. 

196 ... 3 ... „ 'recemmendations ' read 

'recommendations'. 
205 Section 171... ,, 'accounts' read 'accounts'. 
232 ... 22 ... „ 'wrote' „ 'stated'. 
243 ... 25 ... ,, 'convniently' read 'conveniently'. 
267 ... 2 ... ,, 'Representaives' read 

' Representatives'. 
288 ... 6 ... ,, 'electoral' read 'electoral'. 
290 ... 9 ... ,, 'pro^'cd' „ 'proved'. 
,, ... 11 .., ,. 'posssesses' ,, 'possesses'. 
292 ... 2 ... „ 'officer' „ 'officer. 
294 ... 12 ... ,, 'intellligence' read 'intelligence', 
xviii ... 19 ... ,, 'of of read 'of. 
xxi ... 20 ... insert full stop after 'India', 
xxiii ... 13 ... for 'incompatiable' read 'incompatible'. 

In the Foreword, first page, line four, please read 'Law' 
with a small '1' and in line five 'Constitution' with a small 'c'; 
and in the second page, line one, 'Great Experiment' with 
small 'g' and small 'e'. In line four of the same page, 
'Constitution' has only a small 'c'. 



PLEASE DO NOT REMOVE 
CARDS OR SLIPS FROM THIS POCKET 



UNIVERSITY OF TORONTO LIBRARY 



si 



62 



JQ iiiyar, V. R, Subrahmanya 

231 The Indian constitution 



^ 



'■i;.,ii/;.